Estate of Ray
Filed 11/30/07 Estate of Ray CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
Estate of RUTH RAY, Deceased.
(Los Angeles County
Super. Ct. No. BP091695)
FAYE KAROLYN KAPLOWITZ,
Petitioner and Respondent,
GAYLE LORETTA RAY NOBLE,
Contestant and Appellant.
APPEAL from a judgment of the Superior Court of LosÂ Angeles County.
Mitchell L. Beckloff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Gayle Loretta Ray Noble, in pro. per., for Contestant and Appellant.
Law Offices of Thomas B. McCullough, Jr., Lauriann Wright, Thomas B. McCullough, Jr., for Petitioner and Respondent.
This appeal involves a will contest. The trial court overruled the contestants objections and admitted the testators will and codicil to probate. We affirm.
Ruth Ray (decedent) and her deceased husband Elihu Ray had two children, appellant Gayle Loretta Ray Noble and respondent Faye Kaplowitz. In 1980, decedent executed a will leaving her entire estate to Kaplowitz and nothing to Noble. A 1998 codicil executed by decedent exercised a power of appointment conferred upon her by the will of Elihu Ray (Elihus will). Elihus will was admitted to probate in 1979. Decedent exercised the power of appointment to leave all of Elihu Rays estate to Kaplowitz, and to prevent Noble from inheriting any part of that estate.
Decedent died in 2005. Kaplowitz petitioned to have decedents 1980 will and 1998 codicil admitted to probate. Noble objected to the admission of the codicil: Elihu Ray intended that she and Kaplowitz share his estate equally, Noble argued, and decedent was not of sound mind when she executed the codicil appointing all of Elihu Rays estate to Kaplowitz alone. In supplemental objections, Noble asserted that decedents codicil exercises the power of appointment in a manner that is inconsistent with and in violation of Elihus will.
The will contest was set for trial. In advance of trial, the parties stipulated that decedents 1980 will is not being contested, and that Elihus will is valid and gave decedent a power of appointment that could be exercised during her life or by will. The parties agreed that the intent of decedents codicil is to completely disinherit Noble from decedents and Elihu Rays estates. On June 5, 2006, Noble stipulated to have Superior Court Commissioner Mitchell Beckloff hear the case. On July 25, 2006, Noble made a peremptory challenge to Beckloff, which was denied as untimely.
The matter was tried on July 31, 2006. In its statement of decision, the court indicated that it had examined Elihus will. Elihus will, the court found, intended to give his wife (decedent) an exclusive power of appointment over his assets. Elihus will did not specify a minimum or maximum amount to be given to his children. Because the power of appointment was exclusive, decedent was entitled to exercise it in the manner she chose. The court overruled Nobles objections and admitted decedents will and codicil to probate.This timely appeal ensued.
1. Denial Of Peremptory Challenge To Judicial Officer
On July 25, 2006, Noble filed a peremptory challenge to the court commissioner assigned to her case, pursuant to Code of Civil Procedure section 170.6. Two days later, the court denied the challenge as untimely. The issue of disqualification is reviewable only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision . . . . (Code Civ. Proc., Â 170.3, subd. (d).) Writ review is the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory. (People v. Panah (2005) 35 Cal.4th 395, 444.) We have no jurisdiction to entertain Nobles challenge to the court commissioner in this appeal. It would be a miscarriage of justice for a party to go forward with trial, gambling on a favorable decision from the court, only to claim judicial bias and demand a retrial if disappointed by the outcome. (InÂ re Cavanaugh (1965) 234 Cal.App.2d 316, 321.)
2. Challenge To The Validity of Codicil
The trial courts order admitting decedents will and codicil to probate is appealable. (Prob. Code, 1303, subd. (b).) Substantial evidence is generally the standard of review in a will contest proceeding, where the evidence is in conflict regarding the soundness of the testators mind or undue influence. (Estate of Teel (1944) 25 Cal.2d 520, 526-528.) However, mental capacity and undue influence are not at issue here. Instead, the issue is the intent of Elihu Ray in giving decedent a power of appointment in his will. The intention of a testator is culled from the instrument itself, though the court may consider extrinsic evidence. (Prob. Code, 21102, subds. (a), (c); Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134.) The interpretation of a written instrument, including a will, is a judicial function. (Estate of Guidotti (2001) 90 Cal.App.4th 1403, 1406.) On appeal, we exercise our independent judgment to interpret the will, provided that there is no conflicting extrinsic evidence. (Ibid.)
In this case, Noble did not provide us with the trial transcript, so if there was any extrinsic evidence regarding Elihu Rays intent, we have no idea what it is. We must presume that any trial testimony on this topic supports the trial courts judgment. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.) Our review is limited to the four corners of Elihus will and decedents will (and codicil). The parties have stipulated that Elihus will is valid and gave decedent a power of appointment over his assets.
Elihus will affords decedent a power of appointment over his assets, which she may exercise by will. Decedent exercised the appointment in her codicil, by directing that all of Elihu Rays assets go to their daughter, Kaplowitz. If decedent failed to exercise the power of appointment, Elihus will directed that his property was to go to Kaplowitz and Noble, in equal shares.
Generally, a power of appointment is a power, conferred by the owner of property (donor) on someone else (donee or holder), to designate the person (appointee) who may receive the property (appointive property) at some future time. . . . The donor usually also specifies who will be entitled to the property if the power is not exercised or if an attempted exercise is invalid. The person who becomes entitled to the property in such a situation is generally referred to as a taker in default of appointment. A general power of appointment is one which may be exercised in favor of anyone, including the donee, and is equivalent to a grant of absolute ownership. A special power is one which may be exercised in favor of certain specified individuals or to a class of designated persons, not including the donee or his estate. (Estate of Thorndike (1979) 90 Cal.App.3d 468, 472-473.)
Elihus will grants decedent a special power of appointment that may be exercised in favor of their children, Kaplowitz and Noble, and their lineal descendants. Elihu Ray must have known that decedent might choose to distribute his trust assets unevenly between Kaplowitz and Noble, or choose to disinherit one child entirely, or choose to bypass the children in favor of grandchildren who are the Rays lineal descendants. If the power was not exercised, Elihus will mandated an even distribution between Kaplowitz and Noble share and share alike, after decedent passed away. By including the power of appointment, Elihu Ray contemplated that decedent would effectuate something other than an even division of his assets. Any other reading of Elihus will would render the power of appointment null and superfluous. If Elihu Ray intended to have a strict division of his assets between his daughters, he would have simply directed an even distribution of the remainder of his assets to Noble and Kaplowitz, and would not have given decedent a power of appointment at all.
The law permitted decedent to effectuate an uneven distribution between her children. [T]he donee of a special power of appointment may appoint the whole or any part of the appointive property to any one or more of the permissible appointees and exclude others. (Prob. Code, 652, subd. (a).) However, [i]f the donor specifies either a minimum or maximum share or amount to be appointed to one or more of the permissible appointees, the exercise of the power must conform to the specification. (Prob. Code, 652, subd. (b).)
In 1992, the Law Revision Commission added its Comment to Probate Code section 652: For example, if the donee is given power to appoint to his children, there is a question whether the donee must give each child a share or whether the donee can appoint all of the assets to one child. If the donee may appoint to one or more of the permissible appointees and exclude others, the power is exclusive. If the donee must appoint a minimum share or amount specified in the creating instrument to each member of the class of permissible appointees, the power is nonexclusive. This section provides, in effect, that all powers are construed to be exclusive except to the extent that the donor has specified a minimum or maximum amount. (52 Wests Ann. Prob. Code (2002 ed.) foll. Â 652, p. 353.)
The power of appointment section of Elihus will does not specify that a minimum or maximum share must be appointed to any of the permissible appointees. Thus, the power of appointment is exclusive. As a result, decedent had the power to include one permissible appointee (Kaplowitz) and exclude the other (Noble). The trial courts legal interpretation of the effect of Elihus will and the effect of decedents codicil is correct. Nobles objections were properly overruled, and decedents will and codicil were properly admitted to probate.
The judgment is affirmed.
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 The codicil reads, in pertinent part, I hold a Power of Appointment conferred by the Will of my husband ELIHU RAY, which Will is being probated in the Superior Court of California . . . . I hereby exercise said Power of Appointment by appointing all of the assets of said estate to be distributed to my daughter FAYE KAROLYN KAPLOWITZ upon my death . . . . By exercising this Power of Appointment, I am intentionally and with full knowledge omitting to have any of my deceased husbands estate . . . provide for my daughter GAYLE LORETTA NOBLE, or for any and all of her issue. On the same day that she executed the codicil, decedent signed a document entitled Exercise of Limited Power of Appointment, leaving all of Elihu Rays estate to Kaplowitz.
 In her request for a statement of decision, Noble did not ask the court to make findings regarding decedents testamentary capacity or undue influence. She has not raised those issues in this appeal. In any event, we cannot consider them because Noble failed to provide us with the trial testimony. Presumably, that testimony would sustain a finding that decedent had the requisite capacity and was not unduly influenced. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 [when no reporters transcript is provided, it is presumed that the trial testimony would demonstrate the absence of error].)
 Elihus will reads, in pertinent part, I hereby give to my wife a limited power of appointment over all of the assets of this trust, which power may be exercised by her during her lifetime or by Will duly admitted to probate by a court of competent jurisdiction. Said power may be exercised solely in favor of my children and lineal descendants. The trust assets may be appointed outright or in trust and may be made subject to the exercise of further powers of appointment within limits, dating from my death, prescribed by the laws relating to perpetuities, provided that the assets shall be ultimately distributed solely for the benefit of the persons within the class described herein. Under no circumstances shall said power be exercised in a manner which shall directly or indirectly benefit my wife, her creditors, her estate, or the creditors of her estate, nor shall said power be exercised in a manner which shall directly or indirectly relieve her of the obligation of support, in whole or in part, of any minor children.