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Estate of Irving Duke, Deceased. v. Jewish National Fund et al

December 5, 2011


APPEAL from a judgment of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed. (Los Angeles County Super. Ct. No. BP108971)

The opinion of the court was delivered by: Suzukawa, J.



In this proceeding to determine the rights of the parties under the holographic will of Irving Duke,*fn1 the trial court entered judgment in favor of Robert B. Radin and Seymour Radin, heirs at law of Irving who were not named in the will, and against the Jewish National Fund (JNF) and the City of Hope (COH), two charitable organizations named in the will. The trial court concluded that the will was unambiguous, and did not make any provision for the disposition of Irving's property in the event his wife predeceased him by several years, as actually occurred, and therefore intestacy resulted. Because we fully concur with the trial court's interpretation of the will and conclude that the applicable law compels the result reached by the trial court, we affirm the judgment.

factual and procedural background

In October 1984, Irving prepared a holographic will. The relevant provisions stated as follows: "I hereby give, bequeath and devise all of the property of which I may die possessed, whether real, personal or mixed, whether heretofore or hereafter acquired to my beloved wife, Mrs. Beatrice Schecter Duke . . . . [¶] Second -- To my brother, Mr. Harry Duke, . . . I leave the sum of One dollar ($1.00) and no more. [¶] Third -- Should my wife Beatrice Schecter Duke and I die at the same moment, my estate is to be equally divided -- [¶] One half is to be donated to the City of Hope in the name and loving memory of my sister, Mrs. Rose Duke Radin. [¶] One half is to be donated to the Jewish National Fund to plant trees in Israel in the names and loving memory of my mother and father -- [¶] Bessie and Isaac Duke." Irving indicated he had intentionally omitted all other persons, whether heirs or otherwise, not specifically mentioned, and specifically disinherited all persons claiming to be his heirs. Finally, he included a no contest clause, which provided that "[i]f any heir, devisee or legatee, or any other person or persons, shall either directly or indirectly, seek to invalidate this Will, or any part thereof, then I hereby give and bequeath to such person or persons the sum of one dollar ($1.00) and no more, in lieu of any other share or interest in my estate." In August 1997, Irving drafted a holographic codicil that stated: "We hereby agree that all of our assets are community property."

Beatrice, Irving's wife, died in July 2002. Irving died in November 2007, without children, predeceased children, or issue. A Los Angeles Deputy Public Administrator found Irving's will in his safe deposit box at his bank, and the will was admitted to probate. Irving's estate was valued in excess of $5 million.

Respondents Seymour and Robert Radin are Irving's sole surviving relatives; they are his nephews, the sons of Irving's sister, Rose Duke Radin.

In March 2008, COH and JNF filed a petition for probate and for letters of administration with will annexed. They requested the appointment of Matthew Bernstein, an employee of JNF, as administrator. The requested letters were issued and filed in May 2008, and Bernstein was appointed as the administrator with will annexed.

In October 2008, the Radins filed a petition for determination of entitlement to estate distribution, and for removal of Bernstein as administrator. They agreed the will was valid, but argued that the condition under which COH and JNF were to take--if Irving and Beatrice died at the same moment--had not been satisfied. The will did not address distribution of the estate where, as had occurred, Beatrice predeceased Irving by several years. The Radins contended that the result was a complete intestacy, and the estate should therefore pass to themselves as Irving's closest living relatives.

The Radins moved for summary judgment. COH filed opposition to the motion, in which JNF and Bernstein joined. They asserted in opposition that the trial court should consider extrinsic evidence of Irving's testamentary intent. To wit, in August 2003, Irving invited a senior gift planning officer for City of Hope to his home. He executed a "City of Hope Gift Annuity Agreement" and gave the COH representative checks totaling $100,000. On January 7, 2004, he did the same thing. During this second meeting, he told the COH representative that he was "'leaving his estate to City of Hope and to Jewish National Fund.'" It was the representative's impression from their conversation that Irving had already prepared a will that included gifts to COH and JNF, not that he intended to do so in the future. Later the same month, on January 30, 2004, Irving once again executed a charitable gift annuity agreement, and gave the COH representative checks totaling $100,000.

The Radins filed a reply, asserting that because the will was not ambiguous, the court was not permitted to consider extrinsic evidence.

The trial court initially denied the motion for summary judgment for reasons not relevant here. The Radins filed a motion for reconsideration. The trial court granted the motion for reconsideration, and thereafter ordered entry of judgment in favor of the Radins.

The court found that the will was not ambiguous or uncertain, and therefore the court could not resort to extrinsic evidence in order to ascertain the intent of the testator. In reaching its conclusions, the court relied on Estate of Barnes (1965) 63 Cal.2d 580 (Barnes). We shall discuss Barnes in ...

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