Estate of Howe

Filed 7/5/07 Estate of Howe CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Gary J. Howe appeals the probate courts decision to order the sale of property devised to him and respondent Richard Howe pursuant to their mothers will. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louise C. Howe executed her last will and testament in June 1982. Her estate consisted of approximately 25 acres in Humboldt County. By her will, Louise gave her son Richard a guest house on the property and a 200-square-foot lot surrounding the house.[1] The remainder of the land was given to her son Gary, who lives on the property.

The will further states: It is my intention that each of my children receive estate [sic] of equal value according to the inventory and appraisal of my estate that will be required by the probate court. With this purpose in mind, I give, devise and bequeath the residue of my estate to my son, Richard N. Howe, and if the appraised value of his guest home property and the residue does not equal one-half of my total net estate, then a cash adjustment shall be made between my two children to equalize their inheritance. The child required to pay the cash difference shall be allowed six (6) months from and after the filing of the inventory and appraisal in my estate proceedings in which to raise the required cash. The will names Richard as the executor and contains a no-contest clause.

Louise died in November 1990. The will was admitted to probate on February 22, 1991. Because the guest house property that was given to Richard is not a legally created separate parcel, the brothers initially agreed that Richard would instead take the Rager parcel, which is a small parcel located within the main parcel. The brothers agreed that the appraised value of the Rager parcel would be used in determining the equalization payment to be made by Gary under the terms of the will.

An appraisal and inventory was filed on August 30, 1993. The main parcel was appraised at $79,500 and the Rager parcel was appraised at $19,500. Richard subsequently objected to the appraisal.

Over the next several years, the brothers were unable to come to an agreement regarding the present value of the two parcels. Gary never tendered an equalizing payment to Richard.

On September 13, 1999, Richard filed a petition for instructions requesting that the probate court order Gary to relinquish possession so that the entire property could be put up for sale as a unit.

On December 22, 2005, Richard filed his first and final account and report. His attorney requested compensation for extraordinary fees in the amount of $56,916.85.

On January 6, 2006, the probate court issued an order to show cause as to why the real property of the estate should not be sold in total and the proceeds divided evenly so as to effectuate an equal division of the assets of the estate.

A trial was held on February 24, 2006. A county planner testified regarding whether a lot line adjustment could be made to successfully subdivide the guest house property. He indicated that the new lot would need to be at least two acres and that the review process for creating a new parcel would cost $2,010.

A supplemental settlement conference was held on April 5, 2006, but unfortunately did not lead to a resolution.

On April 11, 2006, the probate court granted Richards petition and ordered that the entire property be sold, with Gary to have the right of first refusal. Richard estimated the present value of the property to be approximately $450,000. This appeal followed.

DISCUSSION

I. No-Contest Clause

On appeal, both brothers claim that the other has violated the no-contest clause in the will. However, Richard concedes that this issue was not actually raised in the probate proceedings below.

While the record shows that the issue of a potential violation of the no-contest clause is mentioned in the pleadings, no proceedings were conducted under Probate Code section 21300 et seq. Neither brother filed a petition under Probate Code section 21320 to request a determination that his conduct would not violate the no-contest clauses in Louises will.[2] No evidence was presented in the lower court on this issue and the probate court did not issue any rulings pertaining to whether either of the brothers had violated the no-contest clause. As a general rule, issues not raised in the trial court cannot be raised for the first time on appeal. [Citation.] (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Accordingly, there is nothing for us to review on appeal regarding this issue.

II. The Probate Court did not Err in Ordering the Sale of the Property

Gary contends that the probate court erred in granting distribution of the property to Richard and Gary as tenants in common by specifically distributing the larger parcel . . . to Richard and Gary both married men as their sole and separate property, as tenants in common . . . .  He also claims that the court erred in distributing the Rager parcel to Richard as his separate property. Gary appears to argue that this distribution is contrary to the provisions made in the will.

Our review of the record does not disclose the error complained of by Gary. While Richards petition requests that the main parcel be distributed to the brothers as tenants in common and that he be granted the Rager parcel as his separate property, the probate courts ruling simply states, in pertinent part: The petition is granted. The real property shall be sold, with Gary Howe having the right of first refusal. There is no reference to the form of title as being in tenancy in common or to the Rager parcel being held as Richards sole and separate property.

To the extent Gary is challenging the order to sell the property, we do not believe that the probate court erred. The proposed distribution is consistent with the terms of the will.

The interpretation of a will or trust instrument presents a question of law unless interpretation turns on the credibility of extrinsic evidence or a conflict therein. (Burch v. George (1994) 7 Cal.4th 246, 254.) The reviewing court has the duty to independently interpret the will when, as here, the credibility of extrinsic evidence or the resolution of a conflict in the evidence are not issues for consideration. (Estate of Edwards (1988) 203 Cal.App.3d 1366, 1371.)

The cardinal rule in the construction of wills is the ascertainment of the testators intent. [Citations.] The testators intent is determined from the language of the will itself. [Citation.] . . . [] Another fundamental rule of the construction of wills requires that every word should be examined and given some effect, if possible. [Citations.] The words used should be given their ordinary, commonsense interpretation. [Citations.] If the intent can be determined from the words actually used, the inquiry is ended. (Estate of Edwards, supra, 203 Cal.App.3d 1366, 1371.)

Probate Code section 21120 provides: The words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative. Preference is to be given to an interpretation of an instrument that will prevent intestacy or failure of a transfer, rather than one that will result in an intestacy or failure of a transfer.

Reading the will with the foregoing rules in mind, we believe the probate court arrived at a proper result. The court ordered that the property be sold and that the proceeds be equally divided between Richard and Gary, with Gary getting the right of first refusal. In our view, the order is consistent with Louises intent, as stated in the will, that her estate be divided equally between the two brothers.

The wills precise directions could not be carried out because the guest house property was not a legal parcel. Nevertheless, the probate court properly interpreted the will in a manner that carries out Louises stated intent of ensuring that both brothers received an equal share of the estate. Moreover, the probate courts order does not automatically force Gary to vacate the property as he has the right of first refusal.

Under the circumstances of this case, we do not see how the probate court could have proceeded differently. The will had been in probate for 15 years with no potential for resolution of the conflict between the brothers. The court heard evidence that it would be a violation of the Subdivision Map Act to carry out the literal terms of the will with respect to the guest house parcel. The county planner testified that in order to carve out a legal parcel from the main parcel for the guest house, the lot would have to be somewhere between two and five acres. Additionally, he estimated that the cost of applying to the county for permission to create such a parcel would be over $2,000.

In sum, the probate courts ruling is consistent with Louises stated desire to divide her property equally between her two children. Accordingly, we find no error.

III. The Petition for Extraordinary Fees

Gary claims that the probate court abused its discretion in awarding extraordinary fees to Richards attorney. He asserts that the declaration of counsel in support of the request did not sufficiently describe the services for which he was claiming compensation.

Again, the probate courts ruling does not reflect the error complained of by Gary. The April 11 ruling contains no mention of the extraordinary fees. Similarly, the reporters transcript of the hearing held on February 24, 2006 does not include any discussion of these fees. Richard claims that this issue was decided adversely to Gary on January 6, 2006, but the record contains no evidence of an order pertaining to this issue. Accordingly, we are unable to determine whether the fees were actually awarded, let alone whether the court abused its discretion in making such an order.

IV. Richards Status as Executor

Gary claims that Richard has acted improperly as executor by advancing his own interests to Garys detriment. Again, this issue was not raised in the probate court below and we will not address it.

V. Sale of the Property does not Violate the Law and Equitable Principles

Gary claims that the sale of the property violates legal and equitable principles. For the reasons stated above, we believe the probate court acted properly in ordering the property to be sold.

Gary also objects to the appointment of a referee. The probate courts ruling provides: The sale and report of division of the proceeds shall be undertaken by a referee pursuant to C.C.P. section 639. The parties shall have 10 days to either agree to a referee, or provide the court with the names of three proposed referees each.

Citing to Richards proposal for appointment of referee, Gary claims that the scope of the powers to be granted the referee is breathtaking in its dimensions. Gary does not direct us to, nor does the record on appeal contain, an actual order from the court awarding any powers to any referee. Once again, Garys claim is not cognizable on appeal.

DISPOSITION

The probate courts ruling of April 11, 2006, regarding the petition for final distribution is affirmed.

Swager, J.

We concur:

Stein, Acting P. J.

Margulies, J.

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[1] We refer to the parties by their first names for the sake of simplicity.

[2] Probate Code section 21320, subdivision (a), has been characterized as a safe harbor petition by which a beneficiary can ask the court to determine that the planned petition, motion or act is not a contest: (a) If an instrument containing a no contest clause is or has become irrevocable, a beneficiary may apply to the court for a determination of whether a particular motion, petition, or other act by the beneficiary . . . would be a contest within the terms of the no contest clause. (See Estate of Davies (2005) 127 Cal.App.4th 1164, 1166.)