2 IB 23 PM 4: 19 3 COURT
IN THE SUPERIOR COURT OF GlfJtM-,-ti-Uflrhx~--
4 5 IN THE MATTER OF THE ESTATE ) PROBATE CASE NO. PR0134-14 6 )
7 OF )
) FINDINGS OF FACT AND CONCLUSIONS 8 LUCY PEARL ULLOA, ) OF LAW RE: PETITION FOR ) PRELIMINARY DISTRIBUTION 9 DECEASED. )
10 ______________________________) 11 INTRODUCTION
12 This matter came before the Honorable Maria T. Cenzon on November 30, 2017 for a
13 hearing on a Petition for Partial and/or Preliminary Distribution (the "Petition for Preliminary 14 Distribution") filed by Petitioners and Heirs: George F. Ulloa, Priscilla J. U. Hartwick, and
15 Esther M. U. Thompson ("Petitioners"). Petitioners appeared through counsel, Attorney Daniel J. 16 Berman. Also present was Attorney Jacqueline Terlaje for Vivian U. McCurdy ("McCurdy"), an 17 heir and surviving sibling of Decedent Lucy Pearl Ulloa ("Decedent"). Administratrix Marcelene 18 Santos and Attorney Vince Camacho, counsel for Administratrix, were also present. 19 Petitioners are seeking a preliminary distribution of the 108,333 shares of stocks m 20 Chamorro Equities, Inc. ("CEI"). At the hearing, McCurdy argued a preliminary distribution at 21 this time is "premature." 1 At the conclusion of the oral arguments, the Court took the matter 22 Under Advisement pursuant to the Local Rules of the Superior Court CVR 7.1(e). Having
23 reviewed the parties' oral arguments, the relevant law, and the record, the Court now issues these 24 findings of facts and conclusions of law. 25 II
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27 1 Hearing on Petitioner's Partial and/or Preliminary Distribution at 2:39:50 to 2:44:02 (Nov. 30, 2017).
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 FINDINGS OF FACT 2 A. FACTUALANDPROCEDURALBACKGROUND
3 By a preponderance of the evidence, the Court makes the following findings of fact: 4 1. Decedent was a resident of Guam and died on Guam on October 9, 2014. 5 2. The relevant summary of the procedural background in this case includes: 6 a. On October 24, 2014, McCurdy filed a Petition for Probate of Will and Letters 7 Testamentary. On December 15, 2014, the Public Guardian filed an objection to 8 appointment of McCurdy as the Executor of the Estate of the Decedent. 9 b. On December 17, 2014, George Ulloa filed an objection to McCurdy serving as 10 Executor of the Estate of Lucy P. Ulloa, explicitly stating, "[George] makes no 11 objection to the dispositive portion or other portions of [decedent's] Will. Instead, 12 this objection is based on 15 GCA § 1723(a), and limited to an objection to 13 [McCurdy] serving as an Executor of the Estate." 14 c. On March 21, 2016, the Court issued an Order after Hearing ("OAH") following a 15 continued bench trial on the appointment of an executor of Decedent's estate. In 16 that OAH, the Court: 17 1. Granted the Motion to Dismiss the Petition and denied the Motion to 18 immediately appoint Marcelene Santos as a SpeGial Administrator, 19 ii. Granted George Ulloa's motion to deny issuance of letters of testamentary 20 to McCurdy, 21 iii. Denied the motion to appoint Marcelene Santos, in either official or 22 personal capacity, as a special administrator while a final determination of 23 her cross-petition for letters of administration remains pending, and 24 IV. Appointed the Clerk of Court, Danielle Rosete, as Special Administrator 25 of Decedent's Estate. 26 27
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 d. On August 18, 2016, the Court issued a Decision and Order finding the Public 2 Guardian, Marcelene Santos, competent for appointment as Administrator of 3 Decedent's Estate with the will annexed. 4 3. On August 10, 2017, Petitioners filed the instant Petition requesting the Court to grant a 5 preliminary distribution under Title 15 GCA § 3001(a) (1) based on Decedent's Last Will 6 and Testament, "an equal, proportionate distribution to all five (5) heirs of 108,333 shares 7 of common stock in CEI, divided into five (5) equal shares," or at 20% (21,666.60 8 shares). See Petition for Preliminary Distribution (Aug. 10, 2017). 9 4. On November 30, 2017, two hours before the scheduled hearing on the Petition, 10 McCurdy filed a Notice of Objection to the Petition. The Court permitted both parties the 11 opportunity to provide further oral arguments on the Petition and Objection to the 12 Petition. 13 5. At the hearing, the Administratrix requested that the Court not issue a ruling on this 14 Petition until after an Inventory and Appraisement is filed. The Petitioners did not object 15 to the Administratrix's proposition. 16 6. During the hearing, the Court also recognized that all notiCes required by Guam law have 17 been satisfied. 18 7. On December 13, 2017, the Administratrix filed an Inventory and Appraisement of 19 Decedent's real and personal property. On February 14, 2018, the Administratrix filed an 20 Amended Inventory and Appraisement. The total estimated value of Decedent's real and 21 personal property (the "Estate") was $2,564,663.68 as of February, 2018; including, 22 108,333 shares of stock in CEI, valued at $1,346,000. 23 8. On March 9, 2018, McCurdy filed a Notice of Civil Action and Objection to the fair 24 market value of the assets asserted by the Administratrix. 25 9. The matter in CV0632-17, Vivian Ulloa McCurdy v. Chamorro Equities, Inc. arises out 26 of a dispute regarding the ownership of Lot 3307-2-Rl. In that case, McCurdy is 27
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 requesting for judgment declaring the Estate of Lucy P. Ulloa as the owner of the Agana 2 Heights Residence. 3 10. The matter in CV1120-16, Vivian Ulloa McCurdy v. Estate of Lucy P. Ulloa, by its 4 Court-Appointed General Administrator, Office of the Public Guardian, Marcelene C. 5 Santos arises out of a claim for costs and expenses owed to McCurdy in defending her 6 appointment as executrix to Decedent's will in this case and while acting as the guardian 7 of Decedent's estate in SP0168-05. 8 11. Petitioners contend that the 108,333 CEI stocks should be distributed as follows: 9 a. Esther M. U. Thompson (20%) 10 b. Priscilla J. U. Hartwick (20%) 11 c. Vivian W.U. McCurdy (20%) 12 d. George Ulloa (20%) 13 e. Heirs of the estate of Paul D. Ulloa (20%) 14 i. Steven L. Ulloa (5%) 15 ii. Frederick Ulloa (5%) 16 iii. Bertha L. Saladier (5%) 17 iv. Walter D. Ulloa (5%) 18 B. RELEVANT PORTIONS OF DECEDENT'S WILL 19 1. Section 11, which states, "I give to my heirs 100,000 shares of Chamorro Equities, Inc. to 20 be divided equally by the following heirs: 21 a. Esther M. U. Thompson 22 b. Priscilla J.U. Hartwick 23 c. Alvin J. Ulloa 24 d. Paul D. Ulloa 25 e. George F. Ulloa 26 f. Vivian W.U. McCurdy 27
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 2. Section 15, which states, "I hereby appoint my sister, Vivian W.U. McCurdy, as the sole 2 executor of my LAST WILL AND TESTAMENT, should she predecease me, or is 3 otherwise unable to act as Executor, I appoint my brother, Alvin J. Ulloa as my 4 executor." 5 3. Section 16 which states:
6 Every heir, legatee, devisee, or beneficiary under this will who shall contest in any court any provision of this instrument shall not be entitled to any devises, 7 legacies, or benefits under this will or any codicil to this will or any trust created by this will. Any and all devices, legacies, and portions of the income or corpus of 8 my estate, otherwise provided to be paid to such person, shall lapse and shall be 9 paid, distributed and passed as remainder in my estate. My executor is specifically authorized to defend at the expense of my estate any contest or attack of any 10 nature upon this will or any codicil to this will, or on any paragraph or provision. 11 CONCLUSIONS OF LAW
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13 A. THIS COURT HAS SUFFICIENT INFORMATION TO MAKE ITS 14 DETERMINATION AS REQUIRED BY SECTIONS 3001 AND 3003
15 1. First, McCurdy argues that the Court does not have sufficient information to make its 16 determinations as required under Guam law. Specifically, under Section 3001 and 17 3003, the Court cannot grant a preliminary distribution without an inventory and
18 appraisement of Decedent's estate. However, Petitioner did not object to the Court
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19 reserving its ruling until after the Administratrix files an inventory and appraisement.
20 The Administratrix has since filed two inventory and appraisements; therefore, this 21 argument is moot. Thus, the Court must now decide whether the requirements of the 22 Guam Code governing preliminary distributions are met. 23 2. Section 3001 of Title 15 of the Guam Code Annotated permits preliminary
24 distributions. 15 GCA § 3001. Guam law provides that preliminary distribution may 25
26 2 McCurdy filed an objection to the Fair Market Value of the assets asserted by the Administratrix, arguing that the "appraised value of the property held by [CEI] is in excess of the values set forth as the Fair Market Value of the 27 shares held by [CEI]." Not. of Civil Action and Objection, at p. 2 (Mar. 9, 2018).
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 be appropriate when the notice requirement under Section 2503 has been satisfied and 2 upon bond (or with or without bond as the Superior Court determines). /d. 3 3. In a preliminary distribution hearing, the Court must find that, "all of the allegations 4 of the petition are true, that the estate is but little indebted, and that the legacy, devise 5 or share of the estate or any portion thereof may be distributed without loss to the 6 creditors or injury to the estate or any person interested therein ... " /d. § 3003. 7 (emphasis added).
8 4. The Court looks to California case law for interpretation since the Guam legislature 9 enacted a Probate Code substantially identical to the California Probate Code in 1953. 10 Zahnen v. Limtiaco, 2008 Guam 5, ![ 17. 11 5. The purpose of provisions permitting preliminary distribution is to encourage early
12 distribution of property to legatees whenever it can be accomplished without
13 jeopardizing the rights of others interested in the estate. Estate of McCallen, 125 Cal. 14 Rptr. 645, 53 Cal.App.3d 142 (1975).
15 6. The recurring issue of distributing Decedent's CEI shares is evidenced by the filings 16 on June 15, 2015 3 and June 24, 2015. 4 The 108,333 shares of stock in CEI remain 17 neutral since the death of the Decedent. The Court agrees that the continued delay in 18 distribution of the CEI shares may cause injury to CEI, in effect to the Decedent's 19 estate. 20 7. As the Court determines below, although Decedent's estate is indebted, such debt is 21 slight. In addition, the Court finds that preliminary distribution of the CEI shares is in 22 the best interest of the estate or that it may grant distribution "without loss to the 23 creditors or injury to the estate." Lastly, the Court finds the heirs, as identified by the 24 Petition for Preliminary Distribution are entitled to the 108,333 CEI shares. 25
26 3 Vivian McCurdy filed an Ex Parte Petition for Letters of Special Administration for the limited purpose of voting all of the Decedent's Estate at CEI's Annual Shareholders Meeting on June 17,2015.
27 4 George Ulloa and Marcelene Santos filed a Petition for Special Letters of Administrator to Distribute Bequests of Stock.
28 In the Matter of the Estate of Lucy Pearl Ulloa; PRO 134-14 FFCL Re: Petition for Preliminary Distribution
B. PENDING LITIGATIONS WILL NOT AFFECT THE SUBJECT OF THE 2 PRELIMINARY DISTRIBUTION 3 1. McCurdy also contends that the Court cannot grant a preliminary distribution where 4 there are two pending litigations, CV0632-17 (Vivian Ulloa McCurdy v. Chamorro 5 Equities, Inc.) and CV1120-16 (Vivian Ulloa McCurdy v. Estate of Lucy P. Ulloa, by 6 its Court-Appointed General Administrator, Office of the Public Guardian, 7 Marcelene C. Santos). However, Petitioner contends that the disposition of these 8 cases will not affect the preliminary distribution it is seeking. In fact, the resolution in 9 CV0632-17 increases the value of Decedent's estate. The Court agrees with the 10 Petitioners.
11 2. In this matter, Petitioners are seeking a preliminary distribution of the 108,333 shares 12 of stock in CEI.
13 3. Several courts have held that a partial distribution may not be ordered where the 14 assets are merely claimed to exist and the estate's right to them is involved in 15 litigation. See 18 A.L.R.3d 1173 (1968).
16 4. However, in the Estate of Dabney, 37 Cal.2d 672, 234 P.2d 962 (1951), the court 17 upheld the discretion of the probate court in allowing preliminary distribution when 18 adverse claims amounted to 25 to 40 percent of assets. Additionally, the Court agrees 19 that "distribution of decedents' estates cannot be delayed to await determination of 20 prospective litigation by adverse claimants of estate's properties or any portion 21 thereof, when estate is otherwise ready for distribution." Id. at 679 (citing Estate of 22 Ross, 180 Cal. 643 (1919)).
23 5. As in the Dabney court, the Court believes that the judge trying the adverse action 24 against the estate is in a better position than this Court to assess likelihood of success 25 in the civil action. ld.
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28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 6. Nonetheless, even if the Court assumes a favorable disposition in CV0632-17, the 2 Court finds such disposition will increase the value of Decedent's estate, rather than 3 decrease it. 4 7. Additionally, the Court is not convinced that a favorable judgment to McCurdy in 5 CV1120-16 would directly affect the subject of this preliminary distribution, since the 6 claim is for approximately $125,000 in costs and fees. Assuming the Court grants the 7 Petition to distribute the CEI shares, the Decedent's estate would remain valued at 8 nearly one million dollars. 9 8. Therefore, the Court finds that the pending litigations involving Decedent's estate do 10 not hinder a preliminary distribution.
11 c. OBJECTION TO APPOINTMENT OF MCCURDY AS AN EXECUTOR DOES NOT VIOLATE THE NO-CONTEST PROVISION 12
13 1. Lastly, McCurdy argues that the Court cannot grant a preliminary distribution 14 because George Ulloa's objection to McCurdy serving as the Executor of Decedent's 15 estate violates the no-contest provision in Decedent's Will. 16 2. Notably, this Court granted George Ulloa's objection and found "[McCurdy] is not 17 competent to serve as an executor for 'want of understanding' of an executor's duties 18 and obligations under 15 GCA 1701(c)(5)." OAH Re: Motion to Dismiss, at p. 4 19 (Mar. 21, 2016). 20 3. Several cases have concluded that actions objecting to the appointment of nominated 21 executors do not violate the no-contest clause. Specifically, in In re Bullock's Estate, 22 the Court opined that a "beneficiary has a right to express a feeling of hostility toward 23 and an opinion of the executor 'in any way, at any place, at any time' he sees fit, 24 without being vulnerable to a charge that he directly or indirectly aided in the contest 25 of the will." 264 Cal. App. 2d 197, 202, 70 Cal. Rptr. 239, 243 (Ct. App. 1968) 26 (citing Lavine v. Shapiro, 257 F.2d 14, 19 (7th Cir. 1958). The Bullock court 27
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 reasoned that such action does not necessarily oppose, contest, attack, or seek to 2 impair or invalidate or set aside the will." !d. 3 4. Similarly, George Ulloa's objection specifically indicated that it did not object to the 4 dispositive portion of the Decedent's Will, but the objection was limited to McCurdy 5 serving as an executor. 6 5. The Court .also agrees with the reasoning provided in Wojtalewicz's Estate v. Waite! 7 that enforcement of the no-contest provision in similar cases would force a 8 beneficiary to "stand by silently while the executor jeopardizes the assets of the 9 estate." 93 lll. App. 3d 1061, 1064, 418 N.E.2d 418, 421 (1981). More importantly, 10 that such enforcement would be contrary to the court's role in ensuring fair dealing 11 and diligence. !d. 12 6. Similarly, the Court declines to find McCurdy's argument persuasive and disagrees 13 that distribution is premature because of a purported violation of the no-contest clause 14 provision. 15 II
16 II 17 II 18 19 20 21 22 23 24 25 26 27
28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution 1 CONCLUSION 2 1. Finding that the notice requirement has been satisfied pursuant to Section 2503, the 3 Court has sufficient information under Section 3001, and that preliminary distribution 4 is in the best interest of Decedent's estate based on Section 3003, the Court finds that 5 preliminary distribution at this time is appropriate. 6 2. The Court determines that bond is unnecessary, pursuant to Section 3001(a). 7 3. The Court hereby GRANTS the Petition for Preliminary Distribution and ORDERS 8 the Administratrix to deliver to the heirs 108,333 shares of Chamorro Equities, Inc. to
9 be divided equally and not inconsistent with the terms of the Decedent's will. 10
11 SO ORDERED this. _ _ _ _ _ _HAR __ 2_3_Z_0_18____
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15 HONO BLE MARIA T. CENZON JUDGE, SUPERIOR COURT OF GUAM 16
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28 In the Matter of the Estate of Lucy Pearl Ulloa; PR0134-14 FFCL Re: Petition for Preliminary Distribution