Stoop v. Wells Fargo Bank

Opinion

SCOTT, J. The estate of Richard F. Dailey appeals from a judgment ordering that respondents Eugene and Bernice Stoop each receive $5,000 from the estate.

The Facts

In July 1980, respondents petitioned the court pursuant to Probate Code section 1080 for a determination of their entitlement to a distribution from the estate of Richard Dailey.1 In particular, each claimed [996]entitlement to a bequest of $5,000 under the following paragraph of Dailey’s will: “Third: I give the following general legacies:

“C. Five Thousand Dollars ($5,000.00) to each of the individuals who have rendered personal services to me on a steady and faithful basis during the six months preceding my death. My executor, in its absolute discretion, shall determine which individuals so qualify. My intention is to show my appreciation to those persons who have aided me personally on a day-to-day basis, whether such individuals were technically classified as employees or not.”

At the commencement of trial before the court, counsel for the estate urged that the testator’s use of the term “absolute discretion” precluded the court from hearing evidence as to whether the testator intended respondents to be among those awarded $5,000. The court decided to hear the evidence subject to subsequent briefing as to the scope of the executor’s discretion.

Wells Fargo Bank’s Assistant Vice President and Trust Officer Thomas Solheim acted on behalf of the bank in its role as executor. Solheim testified that as he understood the language of the will, an individual could render “personal services” on a steady and faithful basis but still not qualify as one who “aided [the decedent] personally on a day-to-day basis.” He concluded that those eligible were people who took care of the decedent’s personal bodily needs, “such as his bedpan, catering to his requests for food, cleaning up after his mess, if you might call it that, in the house.” He had determined that Eugene Stoop did not qualify because he worked outside as a gardener, and he did not know of any service rendered by Bernice Stoop.

The Stoops were hired by the decedent as a couple more than six months preceding his death. Eugene’s job was as caretaker and gardener; his wife, Bernice, was to care for the decedent’s dogs when he was away, and “help out when [she] could.” They lived in a house on the grounds of the decedent’s estate. Bernice testified that in addition to caring for the dogs, she came to the main house to visit the decedent regularly, brought him a plant or flowers occasionally, and brought him food now and then. The decedent also had a full-time housekeeper and cook. Philip Stork, the attorney who drafted the will, testified that the