Mallarino v. Hammersmith

KAUFMAN, J. This is an appeal from an order denying petition of appellants for decree determining interest in estate.

Petitioners and appellants herein, Marjorie Mallarino and Lois Graham, are nieces of decedent, George A. Kearns. Respondent, Emma Traung Hammersmith, the fiancée of decedent, was by the will bequeathed all of testator’s real and personal property and was also named executrix of his estate. Clause 1 of the will read as follows: “I hereby bequeath to my beloved and devoted fiancee, Emma Traung Hammersmith of the City and County of San Francisco, California, all of my real and personal property and belongings that I possess or are due me of whatsoever nature.” Clause 2 named respondent as executrix. Clause 3 bequeathed $1.00 each to testator’s brother William L. Kearns, since deceased, and to Mrs. Marjorie Mallarino and Mrs. Lois Graham, and declared that if any of them contest the will “it shall avail them nothing.”

Clause 5, the source of all the controversy herein, states as follows:

“I hereby direct my Executor Emma Traung Hammersmith to provide for my nieces Mrs. Marjorie Mallorino and Mrs. Lois Graham as her judgment, kindness and honesty sees fit to do, and likewise to provide for any other kin or close friend which in her judgment warrants same.”

On October 11, 1946, respondent filed a petition for partial distribution of estate in which she alleged that she was “the sole heir, devisee and legatee” under the will. The petition named all known heirs of decedent and asked that certain real property described therein be distributed to her. The order for partial distribution of estate was filed on October 28, 1946, in which it was found that notice of the hearing had been regularly given “for the period and in the manner required by Section 1200 of the Probate Code,” and that “no person had appeared to contest the same.” The court [834]found that all the allegations of the petition were true, and ordered that the executrix deliver to Emma Traung Hammer-smith, individually, the real property describing the same, to which “she is justly entitled, to wit: all right, title and interest of every kind and nature.”

On November 26, 1947, respondent in her capacity as executrix, filed a petition for instructions to determine her duties under the will, alleging that petitioner could not properly administer the estate without an interpretation of paragraph 5 of the will, but contending that the words therein were precatory. The superior court held the provision of clause 5 to be precatory and on appeal this court held that said provision created a valid and enforceable trust. However, the Supreme Court in Estate of Kearns, 36 Cal.2d 531 [225 P.2d 218], held that these provisions were ambiguous and that extrinsic evidence should be admitted to determine the matter.