Wednesday, May 9, 2001
Page 9
PERSPECTIVES
(Column)
Do Dogs Have Rights in California?
By ROGER
M. GRACE
(Third
in a series on dogs and the courts.)
A holographic will was inscribed on a small card. One side read: "March 18-1957. I leave everything I own Real & Personal to Chester H. Quinn & Roxy Russell."
It was signed by Thelma L. Russell.
There was a notation to "Turn the card." The other side said: "My ($ 10.) Ten dollar gold Piece & diamonds I leave to Georgia Nan Russell. Alverata, Geogia."
It seems clear cut. Georgia Nan Russell was to get the gold piece and diamonds and Chester H. Quinn and Roxy Russell would receive the residue of the estate as tenants in common.
The glitch was that Roxy Russell was an Airedale.
And the dog, as it happens, predeceased the testator.
So, did Quinn get Roxy’s share? No. The Supreme Court held in Estate of Russell (1968) 69 Cal. 2d 200 that "[a]s a dog cannot be the beneficiary under a will...the attempted gift to Roxy Russell is void." Quinn got one half of the residue and Georgia Nan Russell—whom the testator wanted to have no more than the gold piece and diamonds—succeeded to Roxy’s share under intestate succession, as Thelma Russell’s only heir-in-law.
What if Roxy had not predeceased the testator? Under the state Supreme Court’s interpretation, no duty to the dog would have existed. Roxy could have been taken to the pound and left there, to be executed if no one adopted her in a few days’ time. This would have thwarted the testator’s unmistakable intent. Funds which Thelma Russell intended to be devoted to the upkeep of her dog would, in defiance of her wishes, have gone to her niece Georgia, to whom she did not want those funds to go.
There have been movies—such as "Rhubarb" (the Millionaire Cat)—and TV episodes and novels based on the theme of estates being left to animals. The common conception is that such is permissible. A drafter of a holographic will who is desirous of assuring that a cherished pet be maintained might well phrase a bequest in terms of the animal being the beneficiary, rather than in terms of the creation of a trust to be applied for the benefit of that animal.
The conclusion that "a dog cannot be the beneficiary under a will" is supported by Justice Raymond Sullivan only by a citation to a treatise. There seems no reason why a dog could not be a beneficiary in the sense of the upkeep of that dog being the object of a testamentary trust. (The Court of Appeal said in dictum four years earlier in Estate of McNeill (1964) 230 Cal.App.2d 449 that the rule against perpetuities stood as no impediment to the creation of such a trust.)
Sullivan dismissed the possibility that a trust was created with this quotation from a 1923 Supreme Court decision: "While no particular form of expression is necessary for the creation of a trust, nevertheless some expression of intent to that end is requisite." There was an expression by Russell of such an intent. Given that a dog, despite a dog’s many talents, cannot write checks, deposit funds, or otherwise tend to his or her financial affairs, the only reasonable reading of a bequest to "to Chester H. Quinn & Roxy Russell" is that Quinn was to receive the residue and was to utilize a portion of the assets in caring for Roxy, thus assuring her continued well being.
Sullivan also scoffed that that there were "no words indicating an enforceable duty upon Quinn" to provide for the dog’s maintenance and that there were no words "indicating to whom the trust property is to go upon termination of the trust." This ignores the existence of precatory trusts. The California Supreme Court had held in Estate of Hamilton (1919) 181 Cal. 758:
"[I] t is not necessary in order to create a trust that it appear that the testator intended that the obligation imposed should be one enforceable by the courts, and it is very rare that such intention does appear. In the vast majority of cases of precatory trusts there is nothing to indicate that the question of whether or not the obligation which he was imposing upon the legatee was enforceable by the courts ever occurred to the testator, and the extreme probabilities are that it did not. The true rule is, we believe, that in the absence of anything indicating an intention on the testator’s part that it should so be enforced, it is sufficient if it appear that the testator did intend to place upon the legatee an obligation as to whose performance the latter has no discretion and which he cannot fail to perform in good conscience and in good faith toward the testator."
What the high court ought to have held was that the entire residue of the estate was left to Quinn subject to an obligation to devote such sums as were necessary for the care for Roxy for the balance of her life.
This is quite close to the situation in In re Renner’s Estate (1948) 358 Pa. 409. There, the testator left to a friend certain possessions which included his pets, a dog and a parrot. He named her executrix. And his will provided: "All the rest, residue and remainder of my estate, real and personal, of whatsoever kind and wheresoever situate, I give, devise and bequeath unto my executrix, hereinafter named, IN TRUST, however, for the maintenance of my pets, which I leave to her kind care and judgment, and for their interment upon their respective deaths in the Francisvale Cemetery."
The court said:
"His will meant that [the executrix] should take the residue from that time; he wished her to apply as much as she considered necessary to the care of the pets and to retain the rest for her own use."
That parallels the conclusion of the trial judge in Estate of Russell with respect to the provision relating to Roxy. San Diego Superior Court Judge Byron F. Lindsley ruled: "The effect of such language is merely to indicate the intention of Testatrix that Chester H. Quinn was to take the entire residuary estate and to use whatever portion thereof as might be necessary to care for and maintain the dog, Roxy Russell."
The Ohio Court of Appeals in In re Searight’s Estate (1950) 87 Ohio App. 417, dealt with the legal effect of this language in a will:
"I give and bequeath my dog, Trixie, to Florence Hand of Wooster, Ohio, and I direct my executor to deposit in the Peoples Federal Savings and Loan Association, Wooster, Ohio, the sum of $1000.00 to be used by him to pay Florence Hand at the rate of 75 cents per day for the keep and care of my dog as long as it shall live."
The court observed: "Text writers on the subject of trusts and many law professors designate a bequest for the care of a specific animal as an ‘honorary trust’ [the Ohio analog of a "precatory trust"]; that is, one binding the conscience of the trustee, since there is no beneficiary capable of enforcing the trust."
The court went on to say:
"To call this bequest for the care of the dog, Trixie, a trust in the accepted sense in which that term is defined is, we know, an unjustified conclusion. The modern authorities, as shown by the cases cited earlier in this discussion, however, uphold the validity of a gift for the purpose designated in the instant case, where the person to whom the power is given is willing to carry out the testator’s wishes. Whether called an ‘honorary trust’ or whatever terminology is used, we conclude that the bequest for the care of the dog, Trixie, is not in and of itself unlawful."
The Kentucky Court of Appeal said in Willett v. Willett (1923) 197 Ky. 663:
"It is insisted, and the lower court so held, that the bequest for the support of the dog Dick must fail because (1) there is no trustee, and (2) a dog cannot take as devisee under our law. It must be remembered that equity never allows a trust to fail for want of a trustee. The court can and should appoint a trustee to take and carry out the trust created in favor of the dog….This is not a devise to the dog Dick, but a trust created for his use and benefit…."
As these out-of-state cases demonstrate, Thelma Russell’s desire could have been observed by the courts consistent with established legal precepts.
Ironically, Estate of Sullivan is frequently cited for the proposition set forth in it (quoting a 1920 decision) that "[t]he paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible." It recites that rule, then proceeds to breach it.
The breach would have been far more egregious, of course, had Roxy still been alive. Well, complicating matters is that at the time of her death on Sept. 8, 1965, Thelma Russell did have a dog named Roxy. This fact is lightly treated in Sullivan’s opinion. A footnote advises:
"Actually the record indicates the existence of two Roxy Russells. The original Roxy was an Airedale dog which testatrix owned at the time she made her will, but which, according to Quinn, died after having had a fox tail removed from its nose, and which, according to the testimony of one Arthur Turner, owner of a pet cemetery, was buried on June 9, 1958. Roxy was replaced with another dog (breed not indicated in the record before us) which, although it answered to the name Roxy, was, according to the record, in fact registered with the American Kennel Club as ‘Russel’s [sic] Royal Kick Roxy.’"
It is not uncommon for highfalutin names to be used in registering dogs with the AKC—names which are not used, at least in full, in addressing the pet. My parents had an Old English sheepdog who was registered as Lord Valiant Meejum of Bridewell. He was simply addressed as "Meejum." My wife and I have a German Shepherd (unregistered) whose full name is Dwight David Eisenhower Whitney Rörtvedt Grace. We call him "Dwight" or "Dwighty." Indeed, the Court of Appeal in Edwards v. Superior Court (1991) 230 Cal.App.3d 173 referred to an English Bull Terrier whose full name was Shavin Kingsmere Notty Nada as "Nada."
The dog who answered to the name of "Roxy" at the time of Thelma Russell’s death could very well have been deemed to be the "Roxy" mentioned in the will. When a new pet is given the same name as a deceased pet, it evidences an intent to "replace" the pet who died, transferring affection to this new family member. The first Roxy was buried in a pet cemetery on June 9, 1958. The fact that Thelma Russell did not change her will in the seven-year interval between the death of the Airedale Roxy and her own death strikes me as being indicative of a desire that the new Roxy be accorded the treatment specified in the will. There is absolutely no reason to suppose that Thelma Russell did not intend that her substitute companion be cared for after her death, and every reason to believe that this woman, who loved dogs, did have such an intent.
But, of course, there was no lawyer in the case to argue for the rights of the living Roxy.
Why not?
Why, when the interests of a dog are meaningfully and concretely implicated in a case, is counsel not appointed to represent those interests? Here, if the second Roxy had a lawyer supporting her interests, that lawyer could have argued that this dog was a substitute beneficiary under a testamentary trust, entitled to have estate funds applied to her upkeep. The dog’s continued existence conceivably was at stake. It is all too common for adult dogs whose owners die to be banished to the pound, and killed.
In a Pennsylvania case I’ll discuss in a few days, the state, through the Office of Attorney General, did assume the role of representing the interests of two Irish Setters, whose owner provided in her will that they were to be killed upon her death.
ANIMAL AS A "PARTY": "Party animal" is a term of recent vintage. The question is whether an animal can become a party—to an action at law, that is.
A case in point is Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, decided by this district’s Div. One. The animals in question were chickens and other fowl. The state Department of Food and Agriculture had adopted regulations under which there could be religious ritualistic slaughter of poultry. A non-profit organization dedicated to humane treatment of farm animals brought an action for declaratory relief, seeking a determination that the regulations ran afoul of the Humane Slaughter Law. An issue arose as to whether the controversy was justiciable. Then-Justice William Masterson (since retired) wrote:
"We realize that Farm Sanctuary and its members might not face any hardship if we decline to reach the merits of the case. The HSL was enacted for the benefit of animals. If the ritualistic slaughter regulation is invalid, it will result in an unlawful injury to poultry, not humans. In essence, the affected animals in this case are the real parties in interest. In these unique circumstances, we should focus on the potential harm to the beneficiaries of the statute."
While the regulations were, in the end, upheld, the quoted paragraph is worth noting. If birds can be "parties" to an action, then certainly dogs can.
While it is not reasonable to expect to see an action entitled Fido v. Smith being entertained in the courts in the near—or even distant—future, the real question is whether the courts will become receptive to legal representation of the interests of "man’s best friend."
Tomorrow I’ll take a further look at "dogs’ rights," with comments on the case involving "Nada"—a dog whose custody was in issue, with no consideration lent the question of the dog’s welfare.