Crocker National Bank v. Cohick

Opinion

CHRISTIAN, J. This appeal challenges an order by which Crocker National Bank was given instructions as testamentary trustee under the will of John E. Bose, deceased, and the final account of the trustee was settled.

John E. Bose executed his last will on March 10, 1959. He died, unmarried and without issue, more than one month but less than six months after that date. He was survived by a cousin (Henrietta Bose) and three nieces and a nephew (Mildred Bose Smith, Alice Bose Cohick, Olga [271]Bose Hicks and Martin C. Bose). Alice, Olga, Martin and the heirs-at-law of Mildred are the present appellants. Under the will, the residue of the estate was left in trust to Henrietta for life, with the remainder (except for three cash bequests) to go on her death in equal shares to four named charities, now respondents.

In January 1960, Mildred petitioned for an order to establish heirship under Probate Code section 41.1 In the decree establishing heirship, the court determined that (1) the three nieces and nephew qualified under section 41 “to take share and share alike” that part of the estate in excess of the one-third limitation on respondents, (2) “all questions of final distribution of proceeds of the testamentary trust cannot be determined under Section 41 . . . until the termination of said testamentary trust,” and (3) “upon the termination of the testamentary trust . . . this Court shall determine ... the rights, if any, of [respondents], and those rights, if any, of the nieces and nephew-of John E. Bose,...”

Probate Code section 41 was repealed in 1971, effective March 4, 1972. Henrietta died on December 7, 1975, and the trustee thereupon took steps to terminate the trust. The present appeal followed.

Appellants point out that they asserted their rights to heirship under Probate Code section 41 before that enactment was repealed. Thus, they argue that their rights in the estate vested upon the filing of the decree establishing heirship; citing Estate of Taylor (1973) 33 Cal.App.3d 44 [108 Cal.Rptr. 778], they claim that the subsequent repeal of section 41 cannot destroy those rights. Respondents, citing Estate of Hughes (1962) 202 Cal.App.2d 12 [20 Cal.Rptr. 475], contend that appellants’ rights to [272]