                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 09 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In re: DENNIS J. COOK,                           No. 08-60053

             Debtor,                             BAP No. CC-08-01091-HMoD


                                                 MEMORANDUM *
WENETA M.A. KOSMALA, Chapter 11
Trustee, Chapter 7 Trustee of the Estate of
Dennis James Cook,

             Appellant,

  v.

DENNIS JAMES COOK; DONALD D.
COOK, Jr., Successor Trustee of the
Donald D. Cook and Nancy A Cook
Revocable Trust,

             Appellees.



                          Appeal from the Ninth Circuit
                           Bankruptcy Appellate Panel
            Hollowell, Montali, and Dunn, Bankruptcy Judges, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted March 4, 2010 **
                                Pasadena, California

Before: CANBY, GOULD and IKUTA, Circuit Judges.


      Because property devised to an inter vivos trust from a will “is not deemed

to be held under a testamentary trust of the testator but becomes a part of the trust

to which it is given,” Cal. Prob. Code § 6300, the real property at issue here

became a part of the inter vivos trust to which it was devised. We have held that

“‘income distributions derived from an intervivos trust do not fit within’ the

definition of § 541(a)(5)(A) and therefore escape ‘the pale of the 180 day

dragnet.’” Neuton v. Danning (In re Neuton), 922 F.2d 1379, 1384 n.6 (9th Cir.

1990) (quoting Newman v. Magill, 99 B.R. 881, 884–85 (C.D. Ill. 1989)).

Therefore, the Debtor’s interest in the inter vivos trust assets is not property of the

bankruptcy estate.

      AFFIRMED.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
