Garatie-Symonds v. Levenson

Filed 8/24/09 Garatie-Symonds v. Levenson CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIVISION SIX

E. Gail Garatie-Symonds appeals from an order denying her petition to confirm that real property owned by her deceased husband, Henry R. Symonds III (husband), is an asset of an inter vivos trust. (Prob. Code,  1300, subd. (k); 850, subd. (a)(3)(B).)^[1] Husband died intestate, but before his death, signed a declaration of trust and general assignments to fund the Henry R. Symonds III and E. Gail Garatie-Symonds Living Trust (trust). The trial court found that the general assignments do not satisfy the statute of frauds which requires that an express trust of real property not only be in writing but describe the real property so that it can be identified with reasonable certainty. ( 15206.) We affirm.

Facts

Appellant and husband were married 28 years and had no children of the marriage. Before his December 15, 2005 death, husband was gifted and inherited real property in Canoga Park and California City from his mother.

In 2002, husband and appellant hired an attorney to prepare a revocable inter vivos trust and mutual wills with a trust pour-over provision. On November 22, 2002, husband signed the declaration of trust but not the will. Husband also signed general assignments assigning his property to the trustees of the trust (i.e., husband and appellant).^[2]

On March 15, 2007, appellant filed a petition to confirm that the Canoga Park and California City properties were trust assets. ( 850, subd. (a)(3)(B).) Relying on Estate of Heggstad (1993) 16 Cal.App.4th 943 (Heggstad), appellant claimed that the general assignments satisfied the statute of frauds. Husband's children from a prior marriage (respondents Jessica L. Symonds, Henry Robert Symonds IV, Dori Levenson, and Cynthia Saito) opposed the petition as intestate heirs.

The probate court found that Heggstad did not apply because the declaration of trust and general assignments do not describe or identify the Canoga Park and California City properties. Denying the petition, the court concluded that the real property was not an asset of the trust.

Statute of Frauds

It is well settled that the statute of frauds forbids the creation of an express trust in real property by verbal declaration of the owner. (Briggs v. Nilson (1964) 226 Cal.App.2d 342, 345; Kingsley v. Carroll (1951) 106 Cal.App.2d 358, 363; 13 Witkin, Summary of Cal Law (10th ed. 2005) Trusts  28, p. 600.) The applicable statute of frauds, section 15206, provides that a trust in real property is not valid "unless evidenced . . . [] [b]y a written instrument signed by the trustee . . . [or] []  (b) [b]y a written instrument conveying the trust property signed by the

settler . . . ."

In Heggstad, supra, 16 Cal.App.4th 943, decedent created a revocable living trust naming himself as trustee. The declaration of trust had a schedule of assets listing some real property (a residence) with an address. (Id., at p. 946.) Decedent, however, never executed a deed conveying the real property to the trust. The Court of Appeal held that the declaration of trust and schedule sufficed because it contained a description of the real property. (Id., at pp. 948-950.) "[A] written declaration of trust by the owner of real property, in which he names himself trustee, is sufficient to create a trust in that property, and . . . the law does not require a separate deed transferring the [real] property to the trust." (Id., at p.  950, fn. omitted.)

Unlike Heggstad, there is no asset schedule describing the California City and Canoga Park properties by address. (Id., at p. 946; see Osswald v. Anderson (1996) 49 Cal.App.4th 812, 818, fn. 1.) The declaration of trust states the trust was funded with $100 and provides for additions by will or "any instrument of transfer." The general assignments state that husband is assigning his "property" to the trustees of the trust but do not describe or identify the real property.

To satisfy the statute of frauds, the writing must describe the real property so that it can be identified with reasonable certainty. ( 15206; Craig v. Zelian (1902) 137 Cal. 105, 105-106.) "Preferably, the writing should disclose a description which is itself definite and certain. Alternatively, however, a description fulfills the test of reasonable certainty if it furnishes the 'means or key' by which the description may be made certain and identified with its location on the ground. [Citation.]" (Beverage v. Canton Placer Mining Co. (1955) 43 Cal.2d 769, 774.) "From this requirement there evolves the test for determining the sufficiency of the description: can a surveyor with the written instrument before him and with or without the admissible parol evidence locate the land and establish its boundaries? [Citations.]" (Ganiats Construction, Inc. v. Hesse (1960) 180 Cal.App.2d 377, 384.)

A street address, a tax assessor parcel number, or an attached map is all that is required. (E.g., Heggstad, supra, 16 Cal.App.4th at p. 946 [street address].) Try as we might, there is no way that a general assignment of husband's "property and assets" describes the real property. The probate court correctly found that the declaration of trust and general assignments do not meet the requirements of Heggstad or create an express trust over real property. ( 15206; Osswald v. Anderson, supra, 49 Cal.App.4th at p. 818.)

Settlor's Intent

Appellant argues that husband intended to fund the trust with his real property. Regardless of what husband intended, an express trust in real property requires a writing that describes the real property.^[3] In Osswald v. Anderson, supra, 49 Cal.App.4th 812, the settlor twice signed trust instruments and deeds to transfer real property to a trust. The Court of Appeal held that the statute of frauds was not satisfied because the declaration of trust did not identify the real property. (Id., at p. 820.) The second trust "suffer[ed] from the same infirmity. . . : there is no writing evidencing a trust in the real property as required by Probate Code section 15206." (Ibid.)

The same principle applies here. Notwithstanding husband's intent to transfer real property to the trust, there is no writing describing the real property. Although a will was prepared with a trust pour-over provision, husband did not sign it.

Parol Evidence

Appellant asserts that the general assignments are "absolute conveyances" and that extrinsic evidence may be considered to determine the intention of the transferor. (21102, subd. (c): see e.g., Wells Fargo Bank v. Marshall (1993) 20 Cal.App.4th 447, 453.) We reject the argument because the general assignments, the will, and the declaration of trust, whether read individually or collectively, do not describe the real property. "Parol evidence may be introduced for the purpose of explaining and clarifying ambiguous terms, but not for the purpose or furnishing or supplying its description." (Miller & Starr, Cal. Real Estate (3d ed 2008)  1:23, p. 77; Alameda Belt Line v. City of Alameda (2003) 113 Cal.App.4th 15, 21.) The real property "description must be such, either in terms or by reference, that the property can be identified without resort to parol evidence. [Citations.]" (Roberts v. Lebrain (1952) 113 Cal.App.2d 712, 715.)

Appellant argues that we should "expand" the law and permit the use of blanket general assignments of real property as a trust funding device. That is a matter for the Legislature, not the courts. ( 15206.) For an express trust of real property, the statute of frauds requires that the declaration of trust, general assignment, or deed transferring property to the trust be in writing and contain an adequate description of the real property. (Heggstad, supra, 16 Cal.App.4th at p. 948; Osswald v. Anderson, supra, 49 Cal.App.4th at p. 818.) This has been the rule for more than one hundred years. (Doran v. Doran (1893) 99 Cal. 311, 314.) Husband's failure to sign his will - a will that provided for a "pour-over" to the trust ( 6300) - is no reason to change the rule.

The judgment (order denying petition to confirm real property as trust asset) is affirmed. Respondents are awarded costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Kent M. Kellegrew, Judge

Superior Court County of Ventura

______________________________

William B. Steinmeyer, Steinmeyer Roth, for Appellant.

Thomas M. Tomlinson; Legler & Tomlinson, for Jessica L. and Henry Robert Symonds, IV., Repondents.

Barbara L. Taaff; Kenneth E. Devore & Associates, for Dori Levenson and Cynthia Saito, Respondents.

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^[1]All statutory references are to the Probate Code

^[2]The first assignment assigned "any bequest or inheritance" that husband would receive from the estate of Helyn R. Symonds, husband's mother. Husband was co-administrator of his mother's estate and probated the estate in the Los Angeles County Superior Court. The second general assignment, executed by husband and appellant, assigned "all their property and assets." Copies of the general assignments are attached hereto as exhibits.

^[3]Ronald Ben Clary, the attorney who prepared the will, declaration of trust, and general assignments stated that husband "was fully aware that he was transferring his ownership interests" in the real property. The probate court found that "[t]he broad language contained in the General Assignments referring to real property interests does not specifically refer to the Canoga Park and California City properties. Therefore, these properties may not be included in the trust. The broad language contained in the General Assignments cannot be bolstered by the declaration of Mr. Clary."