Montgomery v. Barcal

California Court of Appeal Apr 28, 1971 No. Civ. No. 37483Published

Before: Cobey

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Holding. A testator's lifetime gift does not adeem a general legacy under Probate Code section 1050 unless the testator expresses an intention to adeem in writing or the donee acknowledges the gift as an ademption in writing. Neither the donee's letter nor the testator's statements regarding payments made under a predeceased spouse's will satisfied these statutory requirements.

Issues

Whether a donee's letter acknowledging receipt of a lifetime gift constitutes a written acknowledgement of ademption under Probate Code section 1050.
Whether a testator's written statement that he was paying legacies 'as the will stated' before probate constitutes a written expression of intent to adeem legacies in his own will.

Disposition. Reversed in part; affirmed in part.

Quotations verified verbatim against the opinion

“Probate Code section 1050 provides in pertinent part that a gift before death shall be considered as an ademption of a general legacy, but that this result shall not obtain unless the testator expresses such an intention in writing”

“Oral evidence of a testator’s intention in making lifetime gifts is not admissible under Probate Code section 1050.”

[250]Opinion

COBEY, Acting P. J. These are cross-appeals challenging the incongruous result that two inter vivos gifts by a testator, George Lackey, to two of his predeceased wife’s cousins in the amounts of their legacies had different legal consequences. As regards Mrs. Maurine Barcal the trial court found that her legacy of $20,000 in George Lackey’s will was adeemed by the lifetime gift to her of this amount. As regards Mrs. Patricia Carson, the court found that the lifetime gift to her of $10,000, the amount of her legacy in George Lackey’s will, did not have this effect. This result occurred because the court concluded that as regards Mrs. Barcal the requirements of Probate Code section 1050 for an ademption had been met, but that with respect to Mrs. Carson they had not.

Background

On August 14, 1956, George and Lavina Lackey, husband and wife, made reciprocal wills under which the estate of each was left to the other. In the event the spouses died about the same time or in the event the spouse, who would have received the estate of the other, predeceased the other, each will provided for general legacies in various amounts to certain specified relatives of the spouses and residual devises and bequests to other specified relatives. Among the general legacies were five to Lavina’s cousins. These were $20,000 to Mrs. Barcal, $10,000 apiece to her daughter Mrs. Carson and Walter Condon and $5,000 apiece to Frances Bartlett and Ethel Young.

On March 10, 1966, Lavina Lackey died. In July, September and October of 1966 George Lackey delivered checks in the amounts of the aforementioned legacies to each of Lavina’s aforementioned five cousins named in the Lackey wills.1 He handed Mrs. Barcal the checks to herself and her daughter, Mrs. Carson and apparently mailed the others to the payees named therein. Apparently he made no written explanations of these gifts to the recipients.

Following the death of George Lackey on April 16, 1969, proceedings were instituted for the probate of his will and the administration of his estate thereunder. In September of 1969 counsel for his personal representatives prepared and obtained from Walter Condon, Ethel Young and Frances Bartlett written acknowledgements that the monies George Lackey had given them in 1966 following his wife’s death were “an advancement [251]

Montgomery v. Barcal

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