Opinion
Hearing Granted June 27, 1940
Appeal from Superior Court, Los Angeles County; Elliott Craig, Judge.
Proceeding in the matter of the estate of Ella W. Kalt, deceased, wherein Stanley R. Kalt, as executor, filed his second and final account, and a petition for final distribution of the remainder of the estate, and Leo V. Youngworth, as administrator with the will annexed of the estate of R.F. Goings, deceased, filed objections to the petition for final distribution. From an unsatisfactory order respecting distribution of the estate, Earl D. Kalt, Loretta Kalt and Stanley R. Kalt, in his individual capacity, legatees, appeal.
Order reversed with directions.
YORK, P.J., dissenting.
COUNSEL
Wolfson & Swetow, of Los Angeles (Herbert Schwab, of Los Angeles, of counsel), for appellants.
Leo V. Youngworth, and J. Harold Decker, both of Los Angeles, for respondent.
OPINION
DORAN, Justice.
The decedent, Ella W. Kalt, died on or about March 26, 1932, leaving a will which was admitted to probate in the superior court on May 9, 1932, upon the petition of Stanley R. Kalt, decedent’s son, who was nominated therein as executor. Thereafter said Stanley R. Kalt qualified as executor. The petition for probate of the will was filed on April 12, 1932, and on May 18, 1932, letters testamentary were issued to him.
After making certain minor bequests of personal property to the decedent’s grandchildren and to the respective wives of her two sons, the testatrix bequeathed and devised the residue of the estate to her two sons, Stanley R. Kalt and Earl D. Kalt, share and share alike.
On July 12, 1932, Leo V. Youngworth, as administrator with the will annexed of the Estate of R.F. Goings, deceased, respondent herein, filed two actions on promissory notes in the municipal court, one being an action against Loretta Kalt and Stanley R. Kalt, in his individual capacity, in connection with which action judgment was recovered by plaintiff in the sum of $1,121.38, and the other case being an action against Stanley R. Kalt, in his individual capacity, in connection with which plaintiff recovered judgment in the sum of $1,239.91. At or near the time of commencement of these actions, writs of attachment were issued and levied as provided by law upon the attachable interests of Stanley R. Kalt and Loretta Kalt, in the estate of Ella W. Kalt, deceased. Abstracts of both judgments were recorded in the office of the county recorder of Los Angeles county, on August 1, 1934.
Approximately four years and four months after the filing of the will for probate, to-wit on August 26, 1936, Stanley R. Kalt, in his individual capacity, and Loretta Kalt, his wife, each separately executed and filed in the records of the probate proceedings a written instrument entitled renunciation, by the terms of which Stanley R. Kalt and Loretta Kalt rejected, renounced and disclaimed any and all right, title or interest which they, or either of them, had in and to the estate of Ella W. Kalt.
On June 17, 1937, Stanley R. Kalt, as executor, filed his second and final account, report and petition for distribution, which was set for hearing on December 6, 1937. The petition for distribution referred to the filing of the renunciations by Stanley R. Kalt and Loretta Kalt, and requested the court to distribute the rest, residue and remainder of the estate, after disposing of the minor bequests of personal property, to Earl D. Kalt who was the remaining residuary legatee; said petition further contained a waiver by Stanley R. Kalt, as executor, of the statutory commissions to which under the law he was entitled.
On November 29, 1937, Leo V. Youngworth, the administrator of the estate of R.F. Goings, deceased, filed written objections to the petition for final distribution, and this matter was also set for hearing on December 6, 1937. At the hearing, oral and documentary evidence was introduced and the matter was argued by counsel and submitted. Thereafter, on December 29, 1937, the court made its findings of fact and conclusions of law, and signed the order settling the final account and for distribution under the will, which order was entered on January 5, 1938.
The decree of distribution gave no effect whatsoever to the renunciations filed by Stanley R. Kalt and his wife, and provided that all personal property bequeathed to either or both of them under the terms of the will, be delivered to the officer making the levy under the writ of attachment, and further decreed that the property of the estate be distributed as in the will provided, to Earl D. Kalt and Stanley R. Kalt, share and share alike.
Thereafter, Earl D. Kalt, Loretta Kalt, and Stanley R. Kalt, in his individual capacity, and not as executor, filed a notice of appeal from the order of January 5, 1938, and particularly from that portion thereof decreeing distribution of the estate under the will.
The bill of exceptions herein sets out in substance the testimony of Stanley R. Kalt at the hearing on December 6, 1937, which reads in part as follows: "that he (Stanley R. Kalt) and his wife, Loretta Kalt, had separately executed and filed in the office of the clerk of the court on the 26th day of August, 1936, written renunciations of all of their right, title and interest in and to the estate and the last will and testament of Ella W. Kalt, deceased, because they realized that any share or interest which they might have in the estate, and which would be distributed to them, would be taken by the attaching creditor and as long as they were going to lose it, they preferred to have Earl D. Kalt receive the share or interest in the estate which they, or either of them, might otherwise have; that neither he nor his wife, Loretta Kalt, received any consideration whatsoever from Earl D. Kalt for the filing of the said renunciations and that neither he nor his wife had entered into any agreement whatever with Earl D. Kalt pertaining to the disposition of the rest, residue and remainder of the estate after the same was distributed to Earl D. Kalt."
The findings of the court are in part as follows:
"VIII. It is true that such purported renunciations and disclaimers were executed and filed herein by the said Stanley R. Kalt and Loretta Kalt for the express purpose of defeating the collection of said judgments held by objector as aforesaid and that the making and filing of said purported renunciations and disclaimers by the said Stanley R. Kalt and Loretta Kalt, and the petition of the said Stanley R. Kalt, as executor of the said estate, for distribution of the said estate to Earl D. Kalt were for the express purpose of destroying said attachment and judgment liens, to the end that objector be hindered, delayed and defeated in the collection of said judgments, and for no other or further purpose.
"IX. It is true that said renunciations and disclaimers were executed and filed herein by the said Stanley R. Kalt and Loretta Kalt and said petition for distribution to the said Earl D. Kalt was filed herein without any consideration whatsoever from the said Earl D. Kalt to Stanley R. Kalt and Loretta Kalt or either of them, or to any other person.
"X. It is true that the said Stanley R. Kalt and Loretta Kalt are estopped to rely upon said purported renunciations and disclaimers and his said petition as such executor for the following reasons, to-wit: That said purported renunciations and disclaimers were executed by them and filed in these proceedings for the sole purpose of defeating the collection of said judgments by objector; that the said Stanley R. Kalt was named in the last will and testament of the decedent as the executor thereof and on the 12th day of April, 1932, filed in these proceedings a petition for the probate of said will and sought therein to be appointed as the executor of said estate; and denominated himself and the said Loretta Kalt as devisees and legatees under said last will and testament; *** that during all of the time elapsing between the death of the decedent and the time of the filing herein of said purported renunciations and disclaimers by the said Stanley R. Kalt and Loretta Kalt the said Stanley R. Kalt and Loretta Kalt had in their possession and enjoyed the use and benefit of all of the personal property bequeathed to them or either of them under the provisions of said last will and testament; that during all of the time between the time of the death of the said decedent and the filing of said purported renunciations and disclaimers by the said Stanley R. Kalt and Loretta Kalt, they nor neither of them made any statement or performed any act or acts to or in the presence of objector indicating directly or indirectly that they or either of them did not intend to take the property devised and bequeathed to them in said last will and testament; that the said Stanley R. Kalt and Loretta Kalt did not file said purported renunciations and disclaimers until approximately four (4) years and four (4) months after the filing of said last will and testament for probate by the said Stanley R. Kalt."
Thus, briefly, it will be seen that the court found and accordingly concluded that appellants renounced the devise under the will for the purpose of defeating the collection of the judgment and are "estopped to rely upon said purported renunciations".
Appellant states the question involved as follows: "Is an heir, devisee or legatee under a will estopped from filing a renunciation and refusing to accept the benefits conferred upon him by such will even where it is done for the purpose of defeating the claim of an attaching creditor, and where such heir, devisee or legatee is not guilty of fraud or collusion with the remaining residuary legatee?"
Although other jurisdictions have had occasion to give the subject consideration the question is one of first impression in California, for which reason the quotations, from the authorities which follow, are somewhat comprehensive.
Schoonover v. Osborne, 193 Iowa 474, 187 N.W. 20, 22, 27 A.L.R. 465, was an action in equity to subject the income from a trust estate to the payment of a judgment. The will devised an undivided one-third of the estate in trust for the use and benefit of the defendant and his minor daughter, one-half of the income therefrom to be paid to each of them during their lifetime. The judgment had been obtained many years prior to the death of the testatrix, and on April 10, 1915, the day after the death of the testatrix, an execution was issued and levied upon the interest of Lewis D. Osborne in her estate. The will was admitted to probate in May, 1915, and on May 19, 1915, this action was commenced seeking to subject the interest of Lewis D. Osborne in the estate to the payment of the judgment. Service of the papers was made upon Osborne on May 24, 1915, and on September 14, 1915, the defendant Osborne appeared by counsel and was given fifteen days to plead. Later this time was extended to October 6, 1915. On October 29, 1915, he filed an answer disclaiming any interest in the property sought to be subjected to the payment of plaintiff’s judgment and alleged that prior thereto, on the 16th day of October, 1915, he had filed in probate a written instrument and renounced the bequest made by the will of his sister in his favor. The minor daughter, by her guardian, intervened in the action setting up the renunciation and alleging that she was entitled to the entire interest in the estate. To this petition in intervention the plaintiff filed an answer setting up three defenses, (1) alleging acceptance of the bequest by Osborne, (2) that the written renunciation was filed after the execution was levied and became a lien upon his interest in the estate, and (3) that it was therefore void. Quoting in part from the opinion, the supreme court of Iowa held that, "*** The rule that a legatee may reject or renounce a bequest made for his benefit, even without casting a burden upon him, is quite as universally recognized as that of presumed acceptance. *** Creditors have no right, nor courts jurisdiction, to compel acceptance, or to prevent the beneficiary from renouncing or rejecting a gift. *** Surely, Osborne did not estop himself by failing to renounce the bequest prior to the funeral of testatrix, or the admission of the will to probate. The record does not disclose what, if any, expense appellee incurred after the petition was filed, nor should her claim that she was misled and induced to incur expense in reliance upon that well-known trait of human nature from which the law raises a presumption that one, when offered, will accept a valuable gift, be accorded serious consideration. Her attitude was hostile to the defendant from the start and affords some justification for the presumption that she was proceeding promptly for the purpose of making renunciation by Osborne impossible, rather than that she was being misled and induced to incur expense in reliance upon his conduct. The evidence does not show that Osborne made declarations that he intended to accept the bequest, but, on the contrary, it tends to show that he told the attorney for the trustee, shortly after his sister’s death, that he did not intend to accept the provisions of the will. The record contains no evidence tending to show that appellee relied upon any declarations or conduct of Osborne, or that she incurred any expense because of his failure to more promptly, publicly declare his intention to renounce the gift. The record is wholly barren of proof tending to show acceptance. Whether the facts pleaded, if proven, were sufficient to constitute an estoppel, we have no occasion to decide. Manifestly, the record does not disclose facts from which an estoppel may be inferred. *** The answer alleged that Osborne by his declarations and conduct accepted the provisions of the will. The evidence wholly fails to show any declarations by him inconsistent with his act renouncing the gift. He was not bound at his peril, to inform appellee of his intention. It was entirely optional with him whether he would accept the provision made for him by his sister for his benefit and permit it to be applied upon appellee’s judgment. She could do nothing to control his discretion in the matter. Levying an execution upon the property devised could not avail the appellee unless her debtor finally accepted the bequest. Surely he was not bound, on account thereof, to accept." Schoonover v. Osborne, supra.
It should also be noted that the court in the Schoonover case, supra, held as follows: "All of the courts hold that the renunciation, when filed, relates back to the time when, under the law, the will became effective."
In Lehr v. Switzer, 213 Iowa 658, 239 N.W. 564, 566, the same court again declares, December 16, 1931: "That the renunciation relates back to the time when under the law the will became effective is well established," and, "That a beneficiary under a will has the right to file an unconditional and final renunciation of all benefits granted him under the will and that his creditors cannot complain of such renunciation is well established by our decisions," observing, also, that "It is true that there is a presumption that a beneficiary accepts the terms of a will that are beneficial to him, but this presumption is overcome by a complete renunciation." See, also, In re Murphy’s Estate, 217 Iowa 1291, 252 N.W. 523.
In Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 100, Ann.Cas.1912D, 1140, the supreme court of Tennessee held, "A beneficial devise is always presumed to be accepted, and, nothing else appearing, the gift will begin immediately upon the going into effect of the will; that is, at the moment of the testator’s death. However, even such a devise may be renounced, and in that event the renunciation will relate to the moment of the gift, and prevent its ever taking effect. *** Where the gift is not prima facie beneficial, but saddled with onerous exactions, there is no presumption of acceptance. When there is an express renunciation in such a case, it will relate to the death of the testator, as in the former instance, and will furnish conclusive evidence that the gift was void from the beginning," citing Bradford v. Calhoun, 120 Tenn. 53, 109 S.W. 502, 504, 19 L.R.A.,N.S., 595, in which last cited case appears the following: "The renunciation is not a voluntary conveyance, void as against existing creditors, because, when he has properly renounced, the renunciation relates back to the date of the gift, and, as he has never accepted the gift, he has had nothing that could be made the subject of a voluntary conveyance."
In Albany Hospital v. Hanson et al., 214 N.Y. 435, 108 N.E. 812, 813, Ann.Cas.1916D 1195, the court declares as follows: "Other English cases and the weight of authority, I think, in this country, is to the effect that such a devise is really an offer to the proposed beneficiary, and, while the presumption is that he will accept it when he has an opportunity, there is no presumption of immediate acceptance; if acceptance does occur, the title will relate back to the time of the devise, at least in the absence of intervening rights; if refusal results, the devise will never take effect, and title never vest." Authorities there cited reach the same conclusion in substance and effect.
The subject received consideration in Brown v. Routzahn, decided by the Circuit Court of Appeals of the Sixth Circuit on March 17, 1933, 63 F.2d 914, 916: "First, under the Ohio law the only effect of the formal election of the decedent to take under the will was to bar his right of courtesy; it was still open to him to accept or reject the gift. *** Next, there is no law in Ohio limiting the time in which a donee may reject or accept a testamentary gift. *** In the light of the above statements, the situation presented is, so far as we are informed, without precedent. The decedent was in possession of the estate from 1912 until it was transferred to the trustees in 1920. It was not, however, in his possession as donee, but as a coexecutor. Nevertheless, at any time within that period he could have taken the one-third or made a renunciation that would have estopped him from claiming it. He did neither. It may be conceded, too, we think, that had he died at any time between 1912 and the date of the distribution, this property would have passed under a general devise in his will, or, leaving no will, would have passed under the laws of descent and distribution as a part of his estate. *** The presumption arising from the beneficial character of the gift would have required that result. *** Superficially this would seem to fix a transferable interest in the donee as of the date of the distribution. On the other hand, however, the law of Ohio does not require a donee to accept or reject a gift within any specified time, and a rejection made at any time before distribution is valid. We thus have a situation where, had the decedent died within the period of administration, the property would have passed as a part of his estate, but, living, he had the right, at any time before distribution, to reject the gift. In the one case the presumption of acceptance would carry through; in the other, it would be rebutted by renunciation. The question is therefore narrowed to the inquiry as to whether the doing of an act which the donee had the right to do, the rejecting of the gift, was a transfer within the meaning of the statute taxing transfers in contemplation of death. ***
"The decedent never owned or had control of the property as donee. All he had was a right to accept. Coupled with this right was an equal right to reject. Either could be exercised so long as the estate was in administration. He did reject. *** What it [the government] did was to collect a tax, not upon the transfer of an interest in property, but upon the exercise of a right to refuse a gift of property. This we think it had no right to do."
The same conclusion was reached by the supreme court of the state of Illinois in People v. Flanagin, 331 Ill. 203, 162 N.E. 848, 849, 60 A.L.R. 305. The court declared, "The law is clear that a legatee or devisee is under no obligation to accept a testamentary gift. ‘It seems clear that the law does not compel a man to accept an estate, either beneficial or in trust, against his will, while it may reasonably presume, in the absence of evidence, that an estate has been accepted, especially where it is beneficial in its character. But, when it turns out that the estate has not been accepted, it remains in the original owner, precisely as if the conveyance had not been executed. It has failed to be effectual to convey the estate, and is, by the disagreement of the party, rendered null.’ Burritt v. Silliman, 13 N.Y. 93, 64 Am.Dec. 532.
" ‘An estate vests, under a devise, on the death of the testator before entry. But a devisee is not bound to accept of a devise to him nolens volens, and he may renounce the gift, by which act the estate will descend to the heir or pass in some other direction under the will. The disclaimer and renunciation must be by some unequivocal act, and it is left undecided whether a verbal disclaimer will be sufficient. A disclaimer by deed is sufficient, and some judges have held that it may be by a verbal renunciation. Perhaps the case will be governed by circumstances.’ 4 Kent, Comm. 533.
" ‘An heir at law is the only person who by the common law becomes the owner of land without his own agency or assent. A title by deed or devise requires the assent of the grantee or devisee before it can take effect.’ 3 Washburn on Real Prop., (6th ed.) 402 [sec. 1829].
"At page 700 [6th ed., sec. 2478] it is said: ‘It is hardly necessary to add that no one can make another the owner of an estate against his consent by devising it to him, so that if the devisee [named] disclaims the devise it becomes inoperative and goes to the heir.’
"This doctrine has been announced in a great many decisions, among which are Albany Hospital v. Albany Guardian Soc., 214 N.Y. 435, 108 N.E. 812, Ann.Cas.1916D, 1195, Bradford v. Calhoun, 120 Tenn. 53, 109 S.W. 502, 19 L.R.A.(N.S.) 595, Defreese v. Lake, 109 Mich. [415] 421, 67 N.W. 505, 32 L.R.A. 744, 63 Am.St.Rep. 584, Welch v. Sackett, 12 Wis. 243, Re Stone’s Estate, 132 Iowa 136, 109 N.W. 455, 10 Ann.Cas.1033, King v. Gridley, 46 Conn. 555, and Watson v. Watson, 128 Mass. 152. In these cases the rule is announced that the renunciation relates back to the moment when the gift was made, so that the estate does not vest, but remains in the original owner, precisely the same as if the will or deed had never been executed, or passes under the instrument, according to its terms, to another (Burritt v. Silliman, supra; Defreese v. Lake, supra; Bradford v. Calhoun, supra), and that a renunciation is not a voluntary conveyance and is not subject to attack by creditors (Bradford v. Calhoun, supra). ***
"The authorities all agree that the devisee cannot be vested with an estate against his will, and he has a right to refuse it, and, when not accepted, it remains in the original owner as if no conveyance had been executed. The instrument cannot be regarded as a voluntary conveyance, since it was optional with the devisees to accept or renounce, and, if it was held that their renunciation was merely a conveyance of the interest devised to them, this would constitute their act in renouncing and refusing to accept as an acceptance of the devise which vested the estate in them. The evidence is that they received nothing for the execution of the instrument, and there is no proof they did so. Their motive in executing the document was to minimize the inheritance tax, and this was not an unlawful motive for refusing to accept the devise. So long as they did not fraudulently receive a benefit for their action, their motives were immaterial."
Sound reason supports the conclusion reached in the foregoing authorities, and to argue otherwise is futile for in the final analysis the right to decline a gift or to renounce a devise under a will is a natural right, the exercise of which needs no statutory authorization.
In giving consideration to the issues involved in the within appeal, it should be emphasized that the element of fraud is entirely absent. No reference to fraud appears in the findings nor, indeed, is there any evidence of facts which would justify such an inference. It should be emphasized also that the effect of the renunciation was merely to prevent the application of certain property, capable of isolation, to the satisfaction of a particular debt. Whether, in the circumstances here presented, the renunciation would postpone or even forever prevent the collection of the debt, or render its collection more difficult or less likely, is beside the issue. Moreover, the right to decline a gift or to renounce a devise under a will, being a natural right, does no violence to morals, and, in the absence of fraud, the exercise thereof is not open to question. Nor can the exercise of such a right, even for the avowed purpose of preventing the application of certain property to the satisfaction of a particular debt, be regarded as ipso facto fraudulent, for such action is lawful per se and as such neither raises the presumption nor necessarily warrants the inference of fraud. Referring to the finding that the renunciation was "for the express purpose of defeating the collection of said judgments", respondent’s argument that "This was the ultimate fact in issue from which the conclusion that it was fraudulent naturally followed," therefore cannot be sustained.
With regard to the reasons relied upon to support an estoppel, as recited in the findings above mentioned, it should be pointed out that Stanley R. Kalt was nominated as executor in the will and was also one of the devisees, hence the fact that he "sought" to be appointed as executor and "denominated" himself as a devisee, as recited in the findings, is of no significance. Moreover, the time within which the right to renounce must be exercised is immaterial unless it bears some relation to acts constituting fraud. In addition, no element of estoppel can be derived from the fact that appellants had possession of the property in question. The record reveals that such possession was maintained by appellant Stanley R. Kalt as executor, and necessarily followed by operation of law from the appointment of appellant as such. There is nothing in the law which required appellants Stanley R. Kalt and Loretta Kalt to indicate, announce or otherwise reveal an intention ultimately not to accept under the will. In other words, the elements of estoppel were not present and hence the application of the doctrine was unwarranted. Subd. 3, sec. 1962, Code Civ.Proc.
It should be noted that a renunciation is in no sense either a conveyance or an assignment. Moreover, as indicated in the decisions above referred to and which are in accord with the weight of authority, the renunciation is effective as of the effective date of the will. This being so, the court is without power to include in the decree of distribution the property embraced by the renunciation. And, finally, it should be borne in mind that the property of an estate is in custodia legis pending the administration thereof, and any attachment filed, for whatever purpose, is subject to the administration of the estate.
For the foregoing reasons the order decreeing distribution of the estate under the will, is reversed with directions to distribute the estate in accordance with the views herein expressed.
I concur: WHITE, J.
YORK, Presiding Justice.
I dissent. While the weight of authority in Iowa and a number of other states generally appears to sustain the view of my associates, as enunciated in the majority opinion herein, such decisions have no authoritative force in this state. The statement of law announced in the majority opinion will be used as a basis for building up in California a new line of cases creating a dangerous precedent. The facts and circumstances shown in the instant case should cause appellant Stanley Kalt’s renunciation to be declared void as against public policy, because if such procedure is sustained, it will open wide a new door to fraud in connection with the adjudicated claims of creditors.
Under the factual situation presented by the record herein (which is different in many particulars from that presented by any of the cases from outside jurisdictions cited in the main opinion), it would seem unconscionable to permit appellant Stanley Kalt to defeat his creditor by renouncing for that purpose alone his right to participate in the estate of his mother, especially in view of the fact that as executor he procured probate of the will, proceeded to administer the estate and failed to give notice of his renunciation until more than four years had elapsed after the rights of his creditor had intervened by the issuance of writs of attachment against his interest in said estate, and until two years after his creditor’s claims had been adjudicated and abstracts of judgments recorded. In other words, conceding that a donee under a will has the right to renounce a devise or a legacy given to him thereunder, such right must be exercised within a reasonable time after opportunity is afforded the donee to do so (Strom v. Wood, 100 Kan. 556, 164 P. 1100; Bacon v. Barber, 110 Vt. 280, 6 A.2d 9, 123 A.L.R. 253, 259); what is a reasonable time being a question of fact for the trial court’s determination. The trial court did not find directly upon this issue, but the phraseology of the findings of fact indicates that such issue was considered and was resolved against the renouncing appellant.
In the case of Lehr v. Switzer, 213 Iowa 658, 239 N.W. 564, 566, cited in the majority opinion as authority for the views therein expressed, the testator died in December, 1926, and a renunciation by a son of the testator of "all interest in the estate of my said father under said will and in the estate of my said father however arising", was filed in April, 1930. Meanwhile a creditor had attached the apparent interest of said beneficiary in the estate and had acquired a sheriff’s deed of certain property after sale upon execution. The court held that nothing in the record estopped the beneficiary from renouncing the gift under the will. In reaching this conclusion, while the court recognized that a long time had elapsed before said beneficiary filed his renunciation, it stated that the record did not show that he knew of the levy or sale at the time he renounced the gift. Also, that the beneficiary was a nonresident and there was no claim that he had asserted any right whatever under the will.
In the instant case, the actions in which the attachments issued were upon promissory notes executed by the renouncing appellant and his wife. Said renouncing appellant was appointed executor upon his own petition for probate of the will, and he continues to act in such capacity, although he has filed a waiver of his right to statutory fees. His entire course of conduct with respect to the administration of the estate, together with his failure to announce his renunciation for a period of four years after the attachments issued, compels the conclusion that he thereby waived his right to renounce the undoubtedly beneficial gift.
Under the circumstances, the trial court was justified in concluding that the judgment creditor stood in the shoes of appellant Stanley Kalt and his wife, to the extent that when he levied upon said appellant’s apparent interest in the estate, he then had a lien upon it, and that said appellant could not defeat such lien by renouncing the right which had theretofore accrued to the said judgment creditor.
Except for a bequest of certain personal property, the share of testatrix’ estate which appellant Stanley Kalt has purportedly renounced is derived from the residuary clause of the will. In this connection, it should be noted that in the case of Lehr v. Switzer, supra, the same situation obtained, i.e., the renouncing beneficiary was a son of testator and was one of the residuary legatees under the will, and had renounced all interest in the estate of his father "however arising". It was there stated at page 566 of 239 N.W.: "The share given to Wesley was in the residuary clause of the will. The general rule is that, where the residuary gift is to several beneficiaries, as in this case, and as to one of such residuary beneficiaries the gift lapses, the share of such beneficiary goes to the testator’s heirs or next of kin as intestate property, and does not increase the shares of the other beneficiaries under the residuary clause. Levings v. Wood, 339 Ill. 11, 170 N.E. 767; In re Hall’s Estate, 183 Cal. 61, 190 P. 364; Crocker v. Crocker, 230 Mass. 478, 120 N.E. 110, 5 A.L.R. 1617; In re Billings’ Estate, 268 Pa. 67, 110 A. 767; Stetson v. Eastman, 84 Me. 366, 24 A. 868; Kent v. Kent, 106 Va. 199, 55 S.E. 564; Lyman v. Coolidge, 176 Mass. 7, 56 N.E. 831; Canfield v. Canfield, 62 N.J.Eq. 578, 50 A. 471; Booth v. Baptist Church, 126 N.Y. 215, 28 N.E. 238.
"This being the rule, under the facts of this case, Wesley, being an heir of testator, would be entitled to one-sixteenth of the property in Audubon county." See, also, Estate of Arms, 186 Cal. 554, 566, 199 P. 1053.
"The rule that a general residuary clause will include and be applicable to lapsed legacies does not apply in respect to a residuary clause where the legacy which has failed or lapsed was intended to be a disposition of part of the residue. In such case, on failure of the intended legacy of part of the residuum, the part as to which the disposition has failed will go as in the case of intestacy, and the residuum passing under the residuary clause will not be augmented by a residue of a residue." 74 A.L.R. 547, citing In re Kelleher’s Estate, 205 Cal. 757, 760, 272 P. 1060.
From this it would appear that in spite of the so-called renunciation of all his rights in the estate of his mother as heir, devisee or legatee, the renouncing appellant Stanley Kalt is entitled to receive one-fourth instead of one-half of the residuary estate, as provided in the will of testatrix. Otherwise, if said appellant’s contention is upheld, he will succeed in doing indirectly that which would avail him nothing if done directly, to-wit: an assignment of his interest in the estate to his brother. Because, if such assignment were made, the judgment creditor herein would be able to subject the interest so assigned to execution under his judgments. The order appealed from should be affirmed, and in any event, at least one-fourth of the residuary estate should be distributed to said appellant Stanley Kalt, subject to the judgments herein referred to.