In re Estate Gutierrez and Gutierrez

• Court: Superior Court of Guam
• Decided: April 9, 2014
• Docket: PR0024-10
• Status: Unknown

Opinion

• ti 1 ORCO-URT I 7QI4APR -9 fff 3:52 2

3 CLERKOFCOURT 4

5 IN THE SUPERIOR COURT OF GUAM

6 IN THE MATTER OF THE ESTATES 7

8 OF PROBATE CASE NO. PR 0024-10

9 JOSE TAITANO GUTIERREZ and FLORENCE S. GUITIERREZ, Husband and DECISION AND ORDER 10 IN T E R P R E T IN G WILL Wife, 11 Decedents. 12

14 INTRODUCTION 15 16 This matter came before the Honorable Arthur R. Barcinas on the 7th day of March,

17 2014. At a hearing called for oral argument on the Contestant-Administrator's Petition to Sale

18 Real Property, the Petitioner requested the Court interpret the Decedents' joint will to determine 19 the distribution of the Estates' property. Attorney Charles McDonald represented the 20 Contestant-Administrator Franklin J. Gutierrez, and Attorney John C. Terlaje represented the 21

22 Petitioner Harry Dean Gutierrez and the remaining heirs of the Decedents. The Court orders

23 Franklin J. Gutierrez, in his capacity as Administrator of the Estates of the Decedents Jose 24 Taitano Gutierrez and Florence S. Gutierrez, to carry out his duties as Administrator in 25 accordance with the interpretation of the will set forth herein. 26

S Decision and Order • PR0024-10; In re Estates of Jose Taitano Gutierrez and Florence S. Gutierrez

I

2 FACTUAL AND PROCEDURAL HISTORY

3 On January 22, 1999, Jose Taitano Gutierrez died, survived by his wife, Florence S. 4 Gutierrez. Florence S. Gutierrez (hereinafter "Mrs. Gutierrez") died on February 17, 2010. On 5 March 3, 2010, the Petitioner, Harry Dean Gutierrez filed an Ex Parte Petition for Special 6 Letters of Administration for both estates. The petition was set to be heard on April 23, 2010. 7

8 However, on March 19, 2010, the same day the hearing was noticed, the Court issued an order

9 appointing the Petitioner as the Special Administrator without holding hearing, and the Clerk of 10 Court swore in the Petitioner as the Special Administrator. On May 3, 2010, the Petitioner filed 11 a Notice of Hearing on Petition for Letters of Administration. This matter was never heard, and 12

on December 9, 2010, the Contestant Franklin J. Gutierrez filed an Objection to the Petition for 13

14 Letters of Administration that was filed by Harry Gutierrez, on the bases that: 1) notice was not

15 properly given for hearing the petition filed by the Petitioner pursuant to 15 GCA § 3401; and 16 2) Mrs. Gutierrez purportedly left a holographic will designating the Contestant as the 17 administrator of her estate. In addition, although the purported will does not specify an inclusive 18

19 list of the assets of the estate, the will purports to distribute certain interests to the Contestant.

20 On March 15, 2011, the Contestant filed his own Petition for Probate of Holographic 21 Will of Florence S. Gutierrez and for Letters Testamentary, or, in the Alternative, Petition for 22 Letters of Administration for the Estate of Jose Taitano Gutierrez, with the Superior Court. The 23 Contestant requested that he be appointed administrator of both estates, and that the Petitioner 24

25 be removed as the administrator of either estate. Subsequently, on March 24, 2011, the

26 Petitioner finally began to publish the notices and issue the mailings required under 15 GCA § 27 3401, and on March 30, 2011, the Court held a hearing on the Petitioner's year-old petition. On 28

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April 12, 2011, the Petitioner filed his Contest of Will and Petition for Letters of I

2 Administration, contesting the Contestant's submitted will, and again requesting Letters of

3 Administration be issued to him. The parties agree that the document purported to be a 4 holographic will was written by Florence S. Gutierrez in her handwriting. The parties agreed to 5 submit the will contest to the Court on the basis of the filings submitted. 6

7 On May 21, 2012, the Court issued Findings of Fact and Conclusions of Law. The Court

8 found that the will was handwritten, dated, and signed by Florence S. Gutierrez, and also signed

9 by Jose Taitano Gutierrez. The Court also found that Mrs. Gutierrez was an adult of sound mind 10 at the time she handwrote the will. The Court concluded that because the document proffered as 11 a will by the Contestant met the requirements of a holographic will under 15 GCA § 207, the 12

13 ordinary formalities required to execute a valid will, as set forth in 15 GCA § 201, were

14 inapplicable. As the Court also found that Mrs. Gutierrez had the testamentary intent to make a 15 will, the document was a valid holographic will. Accordingly, the Court granted probate to the 16 will and appointed the Contestant Franklin J. Gutierrez as Administrator of the Estates. 17 The Petitioner filed a timely Motion for Reconsideration. The Court heard oral argument 18

19 on August 17, 2012, and issued a Decision and Order denying the Motion on November 8,

20 2012. Thereafter, the Petitioner filed a Petition for Appointment of Administrator to Replace 21 Current Administrator, which the Contestant-Administrator opposed. The Court denied the 22 Petition on August 23, 2013. On November 12, 2013, the Court ordered the Contestant- 23

24 Administrator to file an Inventory and Appraisement of the assets of the Estates. The Inventory

25 and Appraisement was filed on November 27, 2013. On December 5, 2013, the Contestant- 26 Administrator filed a Petition to Sale Real Property. After a continuance, the motion hearing 27 occurred on March 7, 2014. At the hearing, the parties revealed to the court that they had agreed 28

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to split the costs of administering the estate among themselves. As the petition' s purpose had I

2 been to use the proceeds of a sale of some of the estate's property in order to pay these costs,

3 the petition withdrawn by the Contestant-Administrator. However, at that hearing the Petitioner, 4 supported by the other heirs of the Decedents besides the Contestant-Administrator, asked the 5 Court to interpret the will. This the Court now does. 6

DISCUSSION 7

8 I. The Will and the Inventory

9 The will was handwritten by Mrs. Gutierrez. As well as the Court is able to make out the 10 handwriting, this is the text of the document: 11 "March, [May crossed out] 26, 1985 [the 5 overwrites a 1] 12

.13 I, Florence S. Gutierrez, along with my husband Jose T. Gutierrez, do here by [sic] agree together [sic] , that our son Franklin James Gutierrez be appointed our Administrator to our 14 estate if anything should happen to us at any time, as he sees fit equally. And our portion 15 concerning Joe and Flo' s Restaurant shall be at his disposal to do with as he sees fit along with 16 our interest of Joe + Flo's Incorporated Shares. We being of sound mind when we sign this agreement between my husband and I." 17 [Signature of Florence S. Gutierrez] 18 Florence S. Gutierrez (printed) [Signature of Jose T. Gutierrez] 19 Jose T. Gutierrez (printed) 20 Time: 4:20 p.m. Xwitness: 21 [Signature of Florence S. Elliott] 22 5/26/81 23 Place: Agana Heights 24

25 I change the date March 26, 1985 Witness 26 [Signature of Florence S. Gutierrez] [Signature of Maria G. Clark]" 27

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The Inventory and Appraisement of the Estates, prepared by Franklin Gutierrez as the 1

2 Estates' Administrator, was filed on November 27, 2013. The document specifies the following

3 properties as belonging to the Estates: 4

5 "A. Real Property/Community Property 6 1. Lot No 48 REM-3-N, Agana Heights, Guam, estimated value: $285,000.00; 7

8 2. Lot No. 48 REM-3-S, Agana Heights, Guam, estimated value: $50,000.00;

9 3. Lot No. 165-2-RI, Yona, Guam - 8% interest, estimated value: $288,000.00; 10 4. Lot 81, Block 2, Tract 20106 (ponding basin), estimated value: $45,000.00. 11 B. Personal Property 12 1. Bank Pacific checking account no. 7001-113164, estimated value: $18,953.50; 13

14 2. 24% interest in the corporation of Joe & Flo's, Inc. The property owned by this corporation includes, among other things, the following real property: [blank], estimated 15 value: Unknown at this time." 16 The estimated total value of t h e four real properties plus the bank account is 17

18 $686,953.50. The assets belonging to the corporation are unspecified, and no estimate of the

19 value of the Estates' interest in the corporation has been brought to the Court's attention. 20 H. Will Interpretation 21 Chapter 6 of Title 15 of the Guam Code, governing the interpretation of wills, specifies 22 that the testator's express intention is paramount. 15 GCA § 601 (2011). The Supreme Court 23

24 has ruled that when interpreting a will, the Court must "first look to the language of the will to

25 determine if it is ambiguous." Torres v. Estate of Cruz ex rel Guzman. 2011 Guam 4 122. A 26 will should be "construed according to the intentions of the testator." Id. at ¶ 15, (citing 15 GCA 27 § 603 (2011)). Minor mistakes and imperfect descriptions of property must be corrected if the 28

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error appears from context. 15 GCA § 611 (2011). Technical words are not necessary to give 1

2 effect to dispositions in the will. 15 GCA § 613 (2011 ). The approach of the Probate Code of

3 Guam is to emphasize the intention of the testators, generally read language in its ordinary and 4 grammatical sense, and avoid total intestacy if possible. See 15 GCA §§ 601, 605, and 613 5 (2011). 6

7 When interpreting the Guam Probate Code, California case law is instructive, because

8 California law was the source of the substantive changes made in 1981. In re Hemlani, 2008 9 Guam 25 ¶ 16 (citing Guam Pub. L. 16-52 (Dec. 17, 1981)). The Probate Code of Guam only 10 specifically mentions a presumption against total intestacy, not partial intestacy. 15 Guam GCA 11 § 605 (2011) ("of two modes of interpreting a will, that is to be preferred which will prevent a 12

13 total intestacy"). But when interpreting the analogous California provision, California courts

14 applied the presumption to partial intestacies as well as total ones. Estate of Wignall, 80 15 Cal.App.2d 958, 960, 183 P.2d 26 (Cal. 1947); Estate of 01sen, 9 Cal.App.2d 374, 379, 50 P.2d 16 (Cal. 1935); Estate of Northcutt, 16 Cal.2d 683, 690, 170 P.2d 607 (1940). When a court 17 interpreted a will, it was to subordinate the meaning of particular words and phrases to the 18

19 "scheme, plan, or dominant purpose," so as to effectively carry out the testator's intent. Estate

20 of O'Connell, 29 Cal.App. 3d, 531-32, 105 Cal.Rptr. 590 (1972). Moreover, a small or nominal 21 gift to a family member indicated the testator's intention to disinherit that family member, who 22 therefore should not receive an intestate share. See Estate of Spence, 57 Cal.App.2d 922,926, 23

135 P.2d 419 (1943); see also Estate of Kaseroff, 19 Cal.3d 272, 275, 137 Cal. Rpt. 644, 562 24

25 P.2d 325 (1977).

26 Upon reading the will in light of the law governing interpretation, the Court makes the 27 following interpretation of the testators' intent: 28

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1. The Decedents intended that their Estates be administered jointly.

2. The Decedents intended that their son Franklin J. Gutierrez be appointed the 2 Administrator of their Estates. 3 3. The Decedents intended that their interest in "Joe and Flo's Restaurant" would be at 4 their son Franklin J. Gutierrez's disposal to do with as he sees fit.

5 4. The Decedents intended that their shares of the capital stock of "Joe + Flo's Incorporated" would be at their son Franklin J. Gutierrez' s disposal to do with as he sees 6 fit. 7 5. The decedents made no other bequests. 8 6. The decedents made no disposition of the residuary of their estate. 9

10 The Decedents' will is unambiguous with regard to the property it attempts to dispose

II of. The will mentions two properties of the Decedents, their interest in "Joe and Flo's 12 Restaurant, " and their interest in the shares of " Joe + Flo' s Incorporated. " These are 13 unambiguously put at the disposal of the Decedent ' s son Franklin J. Gutierrez. No other specific 14

15 bequests are made, nor is any disposition of the residuary of the Estates made, in the will. Nor

16 are there lines in the will that are ambiguous and could be interpreted as making additional 17 bequests or disposing of the residuary. 18 M. Comparison of Will and Inventory; P r o p er t y Dispo s itio n 19 Comparing the assets mentioned in the will with those in the Inventory and Appraisal of 20 21 the Estates, the Court finds:

22 1. The will ' s mention of "our interest of Joe + Flo's Incorporated Shares," corresponds to Line 2 of Section B of the Inventory: "24% interest in the corporation of Joe & Flo's, 23 Inc." 24 2. The will's mention of "our portion concerning Joe and Flo's Restaurant, " has no 25 analogue in the assets of the Estates listed in the Inventory. 26 3. The real properties owned by the Estates that are enumerated at Section A Lines 1-4 of 27 the Inventory are not mentioned in the will.

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4. The bank account owned by the Estates that is enumerated at Section B Line 1 of the 1 Inventory is not mentioned in the will. 2

3 The slight difference in terminology between the will's mention of "our interest of Joe + 4 Flo's Incorporated Shares," and the Inventory's term "the corporation of Joe and Flo' s Inc." is 5 immaterial, as the testators' intention in making the bequest is unambiguous. The Decedents 6

7 unambiguously intended to give their interest in the corporation, whatever that interest was at

8 the time of the surviving spouse's death, to Franklin J. Gutierrez. A gift of specific personal 9 property, in this case, shares of a corporation's capital stock, is a "specific legacy" under the 10 terms of the Guam Probate Code. See 15 GCA § 645(a) (2011). The fact that they did not make 11 mention of a percentage interest in the corporation or a number of shares is irrelevant in the face 12

13 of their unambiguous intent.

14 The Decedents also evinced a clear intention to give their son Franklin J. Gutierrez their 15 interest in the ownership of Joe and Flo's Restaurant. But in contrast to their interest in the 16 shares of capital stock of Joe & Flo's, Inc., there is no asset in the Estates' possession that 17 corresponds with this bequest. The interest in the restaurant is also a legacy of a particular thing, 18

19 and not merely a legacy of money which specifies property as a source from which the money is

20 to be derived. See 15 GCA § 645(a), (b) (2011) (contrasting specific legacies with 21 demonstrative legacies). When the property that was willed via a specific legacy is not a part of 22 the estate at the time of the testator's death, that specific legacy falls victim to ademption, which 23

means the gift fails, and the value of the intended gift is not given to the intended beneficiary as 24

25 cash or other property. See 15 GCA § 645(a) (2011); see also 80 Am. Jur. 2d Wills § 1705 26 (1975). 27

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When a testator dies without disposing of property by will, Guam' s succession statute t

2 takes effect. 15 GCA § 801 et seq . (2011). This is the case when a testator dies intestate,

3 without a will at all, but also when a testator dies with a will that does not dispose of the 4 testator' s entire estate, in partial intestacy. See 15 GCA § 803 (2011). Guam law, and American 5 jurisprudence generally, presumes against intestacy. See 15 GCA § 605 (2011) (" of two modes 6

of interpreting a will, that is to be preferred which will prevent a total intestacy"); see also 80 7

8 Am Jur. 2d Wills § 1175 ( 1975) (describing the traditional presumption against intestacy).

9 Courts in California, when interpreting the California provision that formed the basis of Guam's 10 presumption against intestacy, applied it to partial as well as total intestacies. Estate of Wixnall, 11 80 Cal.App.2d 958, 960, 183 P.2d 26 (Cal. 1947); Estate of Olsen, 9 Cal.App.2d 374, 379, 50 12

13 P.2d (Cal. 1935); Estate of Northcutt. 16 Cal.2d 683, 690, 170 P.2d 607 (1940).

14 But the presumption against intestacy, including partial intestacy, is used to interpret 15 ambiguous language that could be fairly read either in favor of intestacy or in favor of a 16 bequest, and does not apply when the language is unambiguous. Contrast Torres v. Estate of 17 Cruz ex rel Guzman. 2011 Guam 4 ¶ 22 (holding that a court should first look to whether the 18

19 text of the document is ambiguous), with 15 GCA § 605 (2011) ("of two modes of interpreting a

20 will, that is to be preferred which will prevent a total intestacy"). Thus, when there is no 21 ambiguity, the presumption against intestacy is inapplicable. 22 The will of the Decedents is two sentences long. The first sentence unambiguously 23

expresses the intention that Franklin J. Gutierrez administer the Estates. The second mentions 24

25 two specific property interests and disposes of them. But there is no language in the will, even

26 ambiguous language, that could be read to make any other bequests or dispose of the residuary 27 of their estate. A general scheme, plan, or dominant purpose with regard to the rest of the 28

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Estates' assets cannot be found. Nor were there any small or purely nominal gifts to family 1

2 members, which may indicate an intention to disinherit. Because the will lacks any ambiguous

3 language that the presumption against intestacy could aid the Court in interpreting, and because 4 there are no other indications of a testimonial intent against intestate transfers, the Court finds 5 that the presumption against intestacy is inapplicable to the remaining property of the Estates. 6

7 Florence S. Gutierrez and Jose Taitano Gutierrez never evinced any intent to dispose of

8 any property besides their interest in Joe and Flo's Restaurant and their shares of Joe & Flo's,

9 Inc. The remaining properties in the Inventory and Appraisal of their Estates, the four real 10 properties and the bank account, are intestate. Accordingly, they are governed not by the will, 11 but by the provisions of the succession statute, 15 GCA § 801 et. seq. (2011). 12

13 CONCLUSION

14 The Court concludes that, pursuant to the will of the Decedents Jose Taitano Gutierrez 15 and Florence S. Gutierrez, the Estates' twenty-four percent interest in the shares of the capital 16 stock of the corporation Joe & Flo's, Inc., shall be at the disposal of the Decedents' son, 17 Franklin J. Gutierrez, to do with as he sees fit. The Court also concludes that the will's mention 18

19 of the Decedent' s Joe & Flo's Restaurant was a specific legacy of property not in the estate. As

20 such, that property is subject to ademption and the legacy fails, and the value of the intended 21 legacy may not be paid out of other assets of the Estates. Lastly, the court concludes that the 22 Decedents made no provision in their will for the four real properties and the bank account, that 23

the Decedents are partially intestate with regard to these assets, and thus that the real properties 24

25 and the bank account shall be ;disposed of according to the provisions of Guam's Succession

26 statute. 27

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The Administrator of the Estates, Franklin J. Gutierrez, shall carry out his duties as 1

2 Administrator in conformance with the interpretation of the will as set forth herein.

4 IT IS SO ORDERED APR 0 9 2014 5

7 HONORABLE ARTHUR R. BARCINAS 8 Judge, Superior Court of Guam 9

II

25 SERVICE VIA COURT. BOX 26 1 tI oow d tki a a r p l r " f t 27

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