Filed 6/26/23 Estate of Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIVISION TWO

E state of DEBRA LYNNE JONES, D eceased.

BARRY VA NDERKELEN, as Administrator, etc.

,

Petitioner and Respondent

,

v.

TOM W. JONES, Individually and as Trustee, etc.,

Objector and Appellant. B319459

(San Luis Obispo County Super. Ct. No. 19PR0059)

TOM W. JONES, Individually and as Trustee, etc.,

Plaintiff and Appellant,

v.

BARRY VANDERKELEN, as Administrator, etc.,

Defendant and Respondent. (San Luis Obispo County Super. Ct. No. 20PR0059)2

APPEAL from a judgment of the Superior Court of San Luis Obispo County

, Hernaldo J. Baltodano, Judge. Affirmed. M. Jude Egan for Objector and Appellant and Plaintiff and Appellant.
Carmel & Naccasha and Victor J. Herrera for Petitioner and Respondent and Defendant and Respondent.

_____________________________________________

Tom W. Jones ( Tommy) seeks to reverse a judgment of the probate court interpreting the Jones Family Trust (Family Trust) executed by his parents, Kenneth Jones (Kenneth) and Mary Jones (Mary) naming Tom my an d his sister, Debra L. Jones (Debbie) as
successor trustees and beneficiaries. 1 The probate court ruled the terms of the Family Trust required that when Debbie died intestate some years after the deaths of her parents, her share of the Family
Trust was t o pass to her e state. In so ruling, the court rejected
Tom my ’s claim that Debbie’s failure to take full distribution of her share prior to her death meant it lapsed and passed to him. We conclude the court properly interpreted the Family Trust and affirm
the judgment

.

FACTUAL AND PROCEDURAL BACKGROUND
A. Facts 2 In September 1977, Mary and Kenneth created the Family Trust. It provides that Kenneth and Mary, as settlors, were also cotrustees; that upon the death of either Kenneth o r Mary, the surviving spouse

1 F or clarity and convenience, we use first names for the individuals involved , as stated in the Family Trust and/or the parties ’ briefs. T he trust instrument also refers to Kenneth and Mary’s children as “Tommy Jones” and “Debbie Jones.”

2 T hese facts are taken from the Joint Statement of Undisputed Material Facts submitted by the parties and/or the trust instrument, including Amendments and Schedules A

– D.3

and settlor would become the sole trustee of the Family Trust; that upon the death of the surviving spouse, Kenneth and Mary’s children (Tommy and Debbie) would become cotrustees; and that upon the death
of either Debbie or Tom my, the surviving child of Kenneth and Mary would become the sole trustee of the Family Trust. In April 1992, Kenneth and Mary amended and restated the Family Trust, but the amendment did not alter the successor trustee provisions. The trust instrument d escribes Debbie as an unmarried adult with no children and Tommy as a married adult with two adult
children. Kenneth died in approximately 1993. Pursuant to the Family Trust, Mary became the sole trustee upon his death, and the trust
estate was divided i nto two separate trust shares designated as Trust “S” (Survivor’s Trust), containing Mary’s share, and Trust “C” (Creditor’s Exemption Trust), containing Kenneth’s share. Mary amended the Family Trust in 2008 to create M.N. Jones Properties

, LP and M.N. Jones Associates, LLC, in which she, Tommy and Debbie each held an ownership interest. At some point, Debbie took some, but not all distributions from the Family Trust. On May 30, 2017, Mary died, and Tommy and Debbie became

cotrustees as we ll as beneficiaries. Each of the two beneficiaries was to
receive a 50 percent share of the Family Trust. On January 24, 2019, Debbie died intestate. Tommy became sole successor trustee and beneficiary of the Family Trust.
B

. Underlying Litigation
The underlying litigation consists of two consolidated probate cases: The first case, Estate of Debra Lynne Jones ( Super. Ct. San Luis Obispo County

, N o. 19PR0059) ( Debbie’s Estate) involved a Probate Code section 850 petition to establish Debbie’s E state’s claim of ownership to property and for an order directing its transfer to Debbie’s
E state. The second case, In re Jones Family Trust of 1977 ( Super. Ct. San Luis Obispo County

, N o. 20PR0059 ) , involved the Family Trust’s petition for final distribu tion of the trust assets to the sole beneficiary and termination of the trust without accounting.4

The parties, Barry VanderKelen, the administrator of Debbie’s
E state (administrator)

, and Tommy, the successor trustee and beneficiary of the Family Trust, s tipulated to having a consolidated evidentiary hearing. The sole issue was whether Debbie’s E state or Tommy was entitled to her share of the Family Trust. At the conclusion of the hearing, the court issued a written ruling finding for
Debbie’s E state. T he court ordered Tommy to transfer Debbie’s share in the Family Trust to the administrator. Following entry of the judgment , Tommy timely filed a notice of appeal.
DISCUSSION
A. Standard of Review Where, as here, there is no conflict in the evidence, int erpretation of a trust instrument is a legal question reviewed de novo. ( Estate of
Powell (2000) 83 Cal.App.4th 1434, 1439; Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168.)
B. Debbie’s Estate Has Standing
At the outset , we address and reject To mmy’s claim that Debbie’s
E state lacks standing. “ ‘A litigant’s standing to sue is a threshold
issue to be resolved before the matter can be reached on the merits.’ ” ( Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345.) Tommy did not raise a standing issue in the probate court. Nonetheless, “[a] party’s standing can be raised at any time in the litigation, even for the first time on appeal.” ( Applera Corp. v. MP Biomedicals, LLC (2009) 173 Cal.App.4th 769, 785.) According to Tommy, Debbie’s E state lacks standing to contest Debbie’s failure to distribute the Family Trust assets before her death because it “is a claim by Debra against Debra.” This assertion has nothing to do with whether Debbie’s E state has standin g to sue. “To have standing to sue, a person, or those whom he [or she] properly represents, must ‘ “have a real interest in the ultimate adjudication because [he or she] has [either] suffered [or] is about to suffer any injury of sufficient magnitude rea sonably to assure that all of the relevant facts and issues will be adequately presented.” ’ ” ( Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th5

1024, 1031

– 1032.) Debbie’s E state, as represented by the administrator, has an “ ‘ actual and substantial interest ’ ” in the distribution of Debbie’s share of the Family Trust and would be injured by an order that her share had lapsed and passed to Tommy. ( Ibid

. ; O’Flaherty v. Belgum (2004) 115 Cal.App.4th 10 4 4 , 1062.) [“An

executor or trustee o f an estate is the real party in interest for purposes of bringing a claim on behalf of those estates ” ] .) The administrator, acting on behalf of Debbie’s E state, has standing in this case. (See
Prob. Code , § 9820 ; 3 Code Civ. Proc.

, § 369, subd. (a).)
T ommy also contends Kathy Barbee (Kathy) lacks standing. Kathy is purportedly Debbie’s registered domestic partner from whom Debbie was allegedly estranged. However, Kathy is not a party to either the underlying consolidated suit or this appeal. We do no t reach any issues Tommy raises concerning Kathy or her interests.
C. Debbie’s Estate Is Entitled t o Her Distributive
Share of the Trust 4

“ The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument. ”

3 F urther statutory references are to the Probate Code unless otherwise indicated.

4 A s a preliminary matter, we agree with the administrator that our review of the record is limited to the pleadings, trial briefs, and evidence before the probate court at the time of the evid entiary hearing. The probate court “reviewed the pleadings in this consolidated action including, but not limited to, the parties ’ trial briefs filed on November 3, 2021, supplemental trial briefs filed on December 9 and 10, 2021, Tom’s separate statement of additional material facts filed on December 9, 2021, and the parties ’ joint statement of undisputed material facts filed on December 10, 2021.” We disregard (1) other evidence admitted in subsequent proceedings in this consolidated case and submitted by Tom my as part of the record on appeal, and (2) assertions of “fact” in Tom my ’s opening brief unsupported by evidence admitted at the hearing. (See Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [“ ‘The appellate court is .

. . confined in its review to the proceedings which took place in the court below and are brought up for review in a properly prepared record on6

( § 21102, subd. (a) .) “ ‘ “In construing a trust instrument, the intent of
the trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it.” ’ ” ( Estate of Cairns (2010) 188 Cal.App.4th 937, 944.) Tommy is not contending any language of the trust instrument is ambiguous. Thus, w e consider its plain language, interpreting words in their ordinary and grammatical sense, unless a different meaning can be clearl y determined. ( Huscher v. Wells Fargo Ba n k (2004) 121 Cal.App.4th 956, 972; accord, Trolan v.
Trolan (2019) 31 Cal.App.5th 939, 949; § 21122.) The Family Trust consists of the Trust Declaration, a rticles I through V containing one or more numbered paragr aphs, and Schedules A through D. Article II sets forth provisions for the distribution of the Family Trust’s income and principal during the lifetime of the settlors and upon the death of the surviving settlor.
Schedule D is the “Distribution of Residue” provision that is primarily at issue. It comes into play because, before she died, Mary never exercised her powers of appointment over the residue of Trusts C and S
under a rticle II, paragraphs 2.7.2 and 2.7.3.
S chedule D states: “Upon the death of the surviving S ettlor, the successor Trustee(s)
then in office shall either continue or terminate the Trusts as follows: “As to Trust C, the balance then remaining shall be divided as
follows:
“One

- half to our daughter, DEBRA L. JONES

. “One

- half to our son, TOMMY W. JONES

. “If Debbie Jones fails to survive to take distribution without leaving surviving lineal issue, her share shall lapse and go to Tommy
Jones.

appeal.’ [Citation.] ‘Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by this court on appeal’ ”].)7

“If Tommy Jones fails to survive to take distribution, his share shall pass to his issue by right of representation.

“ AS TO TRUST S : “Trust S shall be modified, continued or terminated, as directed by the surviving settlor. If no other direction is made, however, then it shall be distributed to the same persons and in the same manner as
Trust C.” The plain meaning of Schedule D is that upon Mary’s death, the
interests of Tommy and Debbie in the Family Trust vested, such that
the two beneficiaries each had a 50 percent share in the residue of Trusts C and S. Debbie satisfied Schedule D’s condition precedent of surviving the surviving settlor to take distribution. Debbie’ s E state is thus entitled to receive the balance of her interest in the Family Trust. In opposition, Tommy acknowledges in his opening brief that he
and Deb bie “had vested rights in the [Family] Trust assets” upon Mary’s death in 2017. Nonetheless, Tommy argues the probate court ignored relevant provisions in the trust instrument that clearly show
the settlors intended: (1) that Debbie had to survive until distribution was complete as a condition precedent; (2) that if Debbie died, her share was to pass s olely to the family’s lineal descendants. We discuss
each contention in turn.

1. Tommy ’s c laim that Deb bie had to survive complete d istribution Tommy argues Schedule D required Debbie to survive to take a
full distribution to receive her share of the re mainder of Trusts C and S. According to Tommy, given the option in Schedule D “ ‘ to continue or
terminate ’ ” the trusts upon Mary’s death, Debbie chose to continue the trusts without taking a complete distribution before she died. Consequently, Debbie “ ‘ fail [ ed ] to survive to take distribution ’ ” and
her E state was not entitled to receive her share. Tommy’s position is simply wrong in several respects. Nothing in the trust instrument gives either Tommy or Debbie the unilateral authority to continue or terminate the Family Trust at his or her discretion. Instead, S chedule D’s phrase that “the successor trustees8

. . . shall either continue or terminate” Trusts C and S relates to the explicit requirements of other distributive provisions: Article II

, par agraphs 2.7.4, 2.7.5, 2.7.6, and 2.7.7 dictate the Family Trust is to continue for the benefit of the settlors’ grandchildren or great grandchildren of certain ages if either or both successor trustees fail to survive the surviving settlor. If the require ments of these paragraphs are met, then the Family Trust shall “continue” as “divided” between Tommy and Debbie. Hence

, the reference in S chedule D. However, these four paragraphs do not control here because both Tommy and Debbie survived Mary. On the other hand, a rticle II, paragraphs 2.7.1, 2.7.2, and 2.7.3 address the termination of the Family Trust and distribution of the C and S Trusts trigg ered by the death of the surviving settlor and survival of successor trustees, which did occur here. Pursuant to these paragraphs, the successor trustees shall terminate the Family Trust and distribute “all of the then remainder of Trust S, together with the remainder of Trust C” to Tommy and Deb bie as directed in Schedule D. Hence, Schedule D’s reference to the termination of the two trusts. We also find no support in the trust instrument for Tommy’s claim that while Debbie had a right to her share as v ested upon Mary’s death, her failure to survive to take full distribution means her E state could not receive it. “Survive to take distribution” means to remain alive after another person has died. ( Burkett v. Capovilla (2003) 112 Cal.App.4th 1444,1450 [“ In their ordinary usage, the terms ‘ survive ’
and ‘ survivorship ’ connote living past the date of another person ’ s death ”].) “Failed to survive to take” does not mean “survived but failed to take,” as Tommy would have us determine. Finally, Tommy makes muc h of the concept of unreasonable delay, relying on Estate of Taylor (1967) 66 Cal.2d 855 and Estate of
Justesen (1999) 77 Cal.App.4th 352. However, whether an administrator or a probate court unreasonably delayed the distribution of an estate, as discusse d in those decisions, are not factual issues before us. The two cases are inapplicable.9

2. Tommy’s contention that distribution to Debbie’s
E state is contrary to the settlors’ intent Tommy further contends the probate court’s ruling that Debbie’s
E state was to receive her share of the Family Trust is contrary to the settlors’ “plain subjective general intent” to keep the assets in the family lineage. Tommy argues the effect of the cou rt’s ruling is that Kathy, Debbie’s domestic partner, will be awarded half of Debbie’s
E state. However, as we previously stated, issues pertaining to Kathy are not before us. Tommy is correct that Kenneth and Mary expressly declared the Family Trust was created “for the benefit of themselves and their descendants,” particularly for their two children. The language of the trust instrument unambiguously states the family assets are to pass in equal shares to Tommy and Debbie, which is what happened here.
D ISPOSITION
The judgment awarding Debbie’s share of the Family Trust to
Debbie’s E state is affirmed. The administrator of Debbie’s E state is to recover costs on appeal.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN

- GERST, J.

HOFFSTADT, J.