Steres v. Fox

Opinion

THOMPSON, J. This is an appeal from an order determining interests in the estate of Zoe Ella Burson, deceased. Appellants, two of the deceased’s six children who will take a portion of the estate which is not disposed of by will, contend that: (1) the probate court erred in failing to honor a stipulation of all interested parties construing a portion of the decedent’s holographic will disposing of a part of her real property; and (2) the court erred in construing a bequest of “the home place with twenty acres” as including the contents of the home as well as real property. We conclude that a stipulation executed by counsel for appellants and respondent determined their rights with respect to the decedent’s real property, and hence that the trial court erred in not honoring the stipulation. We conclude also that the probate court correctly construed the devise of the “home place” as impliedly bequeathing its contents because only that construction avoids intestacy as to the contents. Accordingly, we reverse the order of the probate court in part.

Zoe Ella Burson died on September 12, 1971, and was survived by six children, three the issue of her marriage to James Juvinall from whom she was divorced, and three the issue of a second marriage to Emil Burson from whom she was also divorced. Mrs. Burson left a valid holographic will dated November 21, 1950.

Prior to the date of her will, decedent acquired title to 80 acres of real property. A portion of the property was improved by a home which [303]decedent occupied. Decedent’s will of November 21, 1950, reads in part: “I don’t want him [Emil Burson] to have any part of this property—and my children who loved me enough to help mo are to share in my property, and whatever Money, Bonds, Etc. I want De Etta to Have my Home place with 20 acres—Richard to have 20 acres adjoining De Etta’s—Beverly—the 20 acres on the East End.” The will leaves $1.00 to decedent’s daughter Ethel and does not mention her sons Rex and Donald.

In 1968, decedent acquired an adjoining 40-acre parcel from her ex-husband Emil Burson. In 1969, decedent sold the easterly 20-acre parcel which the will bequeathed to Beverly for a down payment plus two notes secured by deeds of trust each in the amount of $7,500.

On August 2, 1972, decedent’s will was admitted to probate over the contest of Ethel and Beverly. De Etta was appointed administratrix with will annexed. On October 2, 1972, De Etta filed a “Petition for Determination of Entitlement of Distribution of Estate.” The petition alleges that a series of disputes had arisen concerning distribution of the decedent’s estate. The disputes are recited as: a claim of Donald and Rex to the “specific devises” to Richard, Dé Etta, and Beverly; a claim that the specific bequest to Beverly had been extinguished by ademption when the easterly 20-acre parcel was sold; a claim by De Etta and Richard that they “are entitled to the 20 acre parcels left to each of them by said will free and clear from any encumbrance . . .” because a general encumbrance on the real property owned by decedent at the time of her death was intended to cover only the 40 acres acquired by her in 1968; a claim by Ethel that she is entitled to a share in the estate; and a claim by all the sons and daughters of decedent except De Etta and Richard that the will does not dispose of the residue of the estate and that all the children are entitled to share equally in the residue by reason of intestacy.