Hearing Granted Jan. 22, 1948.
Appeal from Superior Court, Solano County; Harlow V. Greenwood, Judge.
Proceeding in the matter of the estate of Frank H. Buck, deceased, wherein executor petitioned probate court for instructions. From decree that there was an ademption as to shares of capital stock bequeathed to Helen S. Peterson, Helen S. Peterson appeals.
Decree affirmed. COUNSEL
Ira B. Langdon, of Stockton, for appellant.
Andrew F. Burke, of San Francisco, Francis C. McInnis, of Fairfield, and Hardin, Rank, Meltzer, & Fletcher, of Oakland, for respondent.
SCHOTTKY, Justice pro tem.
Frank H. Buck, an attorney at law since 1911 and congressman from the third California district from 1933 until his death on September 17, 1942, executed a will on December 7, 1940. In said will he made certain bequests of shares of stock of a company known as ‘Belridge Oil Company,’ made certain cash bequests, and bequeathed the residue of his estate to his wife, Eva B. Buck. The will contained two paragraphs reading as follows:
‘Sixth: My children have all been provided for amply under the will of my mother, Annie S. Buck. Nevertheless, as a final and personal bequest, I give and bequeath to each of them Five Thousand (5,000) shares of the capital stock of the Belridge Oil Company, which shares are now represented in my estate by trustees’ certificates.’ (Italics added.)
‘Eighth: I give and bequeath to Helen S. Peterson, residing at the time of the execution of this will at Garden Towers, 15th Street, N. W., Washington, D. C., Five Thousand (5,000) shares of the capital stock of Belridge Oil Company, which shares are now represented by trustees’ certificates, and in addition thereto, the sum of Thirty Thousand Dollars ($30,000.00) in cash.’
There were six children who survived the testator; and Helen S. Peterson, mentioned in paragraph Eighth, is not related to testator.
On February 26, 1941, decedent entered into a property settlement agreement with his wife, Eva B. Buck, under the terms of which agreement 10,000 shares of the Belridge Oil Company stock were transferred to her. At the time of the execution of his will, decedent was the owner of 40,001 shares of Belridge Oil Company stock, 10,000 of which were covered by a Voting Trust Agreement. He acquired no additional shares, so that at the time of his death he owned 30,001 shares which are part of the assets of the estate in probate. Because 35,000 shares were bequeathed by said paragraphs Sixth and Eighth of his will, the executor petitioned the probate court for instructions, and that court, after a hearing, found that the bequests of shares made under said paragraphs were specific bequests, and decreed that under section 752 of the Probate Code the 30,000 shares of the oil company stock should be distributed to the six children of decedent in full satisfaction of their bequests, and that there was an ademption as to the 5,000 shares bequeathed to Helen S. Peterson. The court also determined that all dividends received on said stock since the date of decedent’s death should go to the children and none to Helen S. Peterson. Miss Peterson has appealed from said decree.
Before proceeding to discuss the contentions of appellant we shall set forth briefly some additional facts which appear from the record.
The number of shares issued by the Belridge Oil Company was 1,000,000. Of these approximately 61% or 612,911 2/3 shares were subject to a voting trust agreement and the owners thereof held trustees’ certificates. These shares were not free shares but were shares restricted by the provisions of the voting trust agreement and of the voting trust certificates issued by the trustees in accordance therewith. It appears from the voting trust agreement that the shares subject to it were closely held, and were contributed by three families of which testator’s family was one. (At the date of decedent’s will, December 7, 1940, the shares subject to the voting trust were held by members of only eight families, and the shares not subject to the voting trust were in only 33 ownerships.) It also appears that the Belridge shares had never been traded in listed on any stock exchange, and that between January 15, 1937, the date of the creation of the voting trust, and September 17, 1942, the date of testator’s death, there were no sales of shares subject to the voting trust, and sales of only 4166 ⅓ shares not subject to the voting trust were made. The testator was at all times a director of Belridge and one of the trustees under the voting trust agreement.
The first contention of appellant is that the bequests in both articles ‘Sixth’ and ‘Eighth’ are general and not specific.
Section 161 of our Probate Code provides:
‘Legacies: Kinds. Legacies are distinguished and designated, according to their nature, as follows:
‘(1) Specific. A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to other property of the testator.’
In 4 Page on Wills (Lifetime Ed.) sec. 1394, p. 112, it is said:
‘A specific legacy is a gift of a specific thing, or of some particular portion of the testator’s estate, which is so described by the testator’s will as to distinguish it from other articles of the same general nature. A specific legacy differs from a general legacy in that it is not intended by testator to be paid out of his estate generally, but is to be paid solely by delivering to the beneficiary the specific thing given by will, as distinguished from a designated value, quantity, and the like.
‘A specific legacy is given by words which describe and identify the specific property which testator gives to the beneficiary.
‘It is not necessary that the property be described in detail, as long as it can be distinguished from testator’s general estate.’
In 18 Am. & Eng. Encyc. of law (2d Ed.) 718, it is stated: ‘A bequest of stocks, bonds, or other securities is specific when it appears that the testator intended to give the legatee the particular shares or securities owned by him (the testator) or a certain amount or proportion thereof; and in such case it is the security itself and not the money represented by it that passes to the legatee.’
A general bequest is, in essence and legal effect, a pecuniary bequest in which the nominal subject matter of the bequest is mentioned as a standard of value only, so as to mark the amount of the testator’s bounty. In 4 Pomeroy’s Equity Jurisprudence (5th Ed.) sec. 1132, pp. 361, 362, in speaking of general legacies, the author says: ‘They are, therefore, rather gifts of amounts than of things or pieces of property specially described and identified. Since all general legacies are, in their legal effect, equivalent to gifts of money equal in amount to the value of the thing actually described in the bequest, the term ‘pecuniary’ is also sometimes used as synonymous with ‘general’. * * * The peculiar effect of a general legacy is, that, instead of operating as a voluntary assignment of the identical thing to the legatee, and so taking effect only when the specific thing or fund remains in existence as a part of th testator’s estate, it creates an obligation resting upon the executor to pay to the legatee the amount specified, if there are sufficient assets left in the estate.’
And in 4 Page on Wills, sec. 1393, p. 108, it is said: ‘As a rule, a general legacy is measured by value or quantity.’
Briefly stated, a specific bequest deals with specific property and can be satisfied with no other, whereas, a general bequest is pecuniary in character and the nominal subject matter thereof is mentioned merely to indicate the amount which the legatee is to receive. A general bequest, therefore, is to be satisfied by the nominal subject matter if it is in the testator’s estate at his death, and if it is not in his estate, then by its value at the date of the testator’s death.
In determining whether a bequest is special or general, the testator’s intention controls. As was well said in Re Estate of Jones, 60 Cal.App.2d 795, at page 798, 141 P.2d 764, 765: ‘Running through the cases * * * are certain fundamental concepts which have been almost universally adopted. Thus, regardless of statutory definitions, see sec. 161, Probate Code, the fundamental and controlling factor is the intent of the testator at the time the will was drafted as expressed in the will considered as a whole and in light of the surrounding circumstances.’
And as stated in 69 C.J., sec. 2104, p. 932: ‘* * * whether the bequest of a security is specific, general, or demonstrative, depends on the intention of the testator, as expressed in the will considered as a whole, in the light of the surrounding circumstances.’
In Re Estate of De Bernal, 165 Cal. 223, 131 P. 375, 376, Ann.Cas.1914D, 26, testatrix’ will devised and bequeathed to her grandchildren, naming them, ‘share and share alike to each, five acres of that certain piece or parcel of land * * * known as the Italian Gardens.’ In holding the devise to be specific the court said, 165 Cal. at page 230, 131 P. at page 378, Ann.Cas.1914D, 26:
‘It was said in Re Estate of Painter, 150 Cal. , 505, 89 P. , 100, 11 Ann.Cas. 760, that in this state the question whether a testamentary gift is specific or general is to be determined by the same tests where the subject of the gift is real as where it is personal property. Section 1357 of the Civil Code declares: ‘A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator.’ * * * It is unquestionably specific to the extent that it minutely describes the tract of land on which the devise is to operate, and it is also clear that it possesses one of the characteristics of a specific devise or legacy peculiar to such a gift, viz.: that resort cannot be had to property of the deceased other than her interest in the Italian Gardens tract to satisfy it.’
In Re Estate of Goodfellow, 166 Cal. 409, at page 412, 137 P. 12, 14, the testatrix bequeathed $5,000 for benefit of Methodist Episcopal Conference out of her share of her father’s estate, but before the death of the testatrix she had received all her share of her father’s estate, and in holding the bequest to be specific the court said: ‘The legacy, it seems to us, was clearly specific. We are not unmindful of the rule that courts in general are averse to construing legacies as specific, * * * While the decisions are by no means uniform, the weight of authority supports the view that this was a specific legacy.’
In Re Estate of Jepson, 181 Cal. 745, 186 P. 352, alluded to in the Jones case, there was an appeal from a decree of distribution; appellants claimed as beneficiaries under a legacy the subject of which was the sum of $12,000 invested at interest in certain mortgages which were paid and cancelled before the death of the testator. The lower court held the bequest was specific and that there was, therefore, a plain case of ademption. Appellants, on the other hand, contended that the legacy was general or demonstrative, and that they were, consequently, entitled to $12,000 out of the general assets of the estate. In sustaining the lower court’s view that the bequest was specific, the court said, 181 Cal. at page 747, 186 P. at page 352:
‘While it is true that a legacy is presumed to be general unless it clearly appears to be specific, especially where it is of a pecuniary character, the intent of the testator necessarily controls, and where it appears that his intent was to give a particular thing or a given sum of money, not generally but only from a specified and definitely ascertained source, the court has no choice but to give effect to that intent.
‘Unquestionably, the legacy under consideration in the instant case would have been specific had its subject been described as the mortgages themselves rather than as a given sum of money. * * * In other words, if it was the sum owing on the mortgages which was bequeathed, and that sum, for the sake of convenience, was described as amounting to the total of the sums secured by the mortgages, the legacy must be considered specific.’
In Re Estate of Babb, 200 Cal. 252, 252 P. 1039, 1040, the testator bequeathed to his uncle all the money ‘I may have in any bank at the time of my decease, * * *.’ In another provision of the will, as an heir at law of Mary L. Taylor in whose estate he was entitled to share, he devised and bequeathed his share of that estate to the five named respondents. Before testator’s death he had received, after execution of his will, from the Taylor Estate, $4,048.20 in money and 70 shares of the capital stock of the Cincinnati Discount Company. The money received from the Taylor Estate was deposited by the testator to his credit in a bank and was part of the money left by him at his death. His executor sold the 70 shares for $4,200 and also received dividends thereon in the sum of $420. In holding that the bequest of decedent’s share in the Taylor Estate was specific, the court said, 200 Cal. at pages 255 and 257, 252 P. at page 1040: ‘A will speaks from the date of the death of the deceased, and not from the date of its execution. [Cases and authorities.] * * * The receipt by the testator of the money and property from the Taylor estate produced an ademption of the legacies to the respondents in so far as the money and property so received by the testator might have been included in said legacies had said money and property remained a part of the Taylor estate up to and including the date of the testator’s death. In re Estate of Goodfellow, 166 Cal. 409, 137 P. 12. The legacies bequeathed to respondents by said will were specific legacies, Civ.Code, sec. 1357. ‘Ademption is effected by the extinction of the thing or fund bequeathed. * * *’ Kramer v. Kramer, 5 Cir., 201 F. 248.’ In Re Estate of Daly, 202 Cal. 284, 260 P. 296, the testator bequeathed one-half of 15,377 ½ shares of the Dairy Delivery Company, then owned by him, to his wife, and the other half of said shares in trust for his children who were named residuary legatees and devisees. During the course of administration the executors received the dividends on all of said stock. The widow filed a petition praying the probate court to distribute said stock and accrued dividends to her. The court made its order distributing the one-half of the stock to her but denied the petition for the distribution to her of one-half of the income, and her appeal was from that portion of the court’s order. In reversing the order of the court below the Supreme Court said, 202 Cal. at page 287, 260 P. at page 297: ‘The bequest to the widow of one-half of the stock of the Dairy Delivery Company, being a ‘legacy of a particular thing, specified and distinguished from all others of the same kind,’ was, of course, a specific bequest (Civ.Code, sec. 1357; In re Estate of De Bernal, 165 Cal. 223, 131 P. 375, Ann.Cas.1914D, 26), and ‘specific legacies carry with them all accessions by way of dividends or interest that may accrue after the death of the testator.’ (2 Schouler on Wills, sec. 1138, p. 1300; In re Estate of De Bernal, supra; Matter of Estate of Woodworth, 31 Cal. 595, 605; Larned v. Adams, 14 Fed.Cas. pages 1155, 1158, No. 8,092; Nash v. Ober, 2 App.D.C. 304, 308; Walton v. Walton, 7 Johns. Ch., [N.Y.] 258, 11 Am.Dec. 456). See 11 Cal.Jur. pp. 484, 486.’
In support of her contention that the legacies here involved are general and not specific, appellant relies mainly on Re Estate of Jones, supra. In that case the particular bequest read as follows: ‘(third) I hereby give and bequeath two one thousand dollar Pacific Gas & Electric five percent bonds to Lyle Hill Presbyterian Church, at Lyle Hill, Templepatrick, County Antrim Ireland, the income from said bonds to be divided equally— between Ballyutoag sunday school, and Lyle Hill sunday school. When the bonds become due, the money to be reinvested by the trustees of Lyle Hill Church, the income to be divided equally between the above mentioned sunday schools.’
At the date of the execution of his will the testator owned ten $1,000 5% unregistered bearer bonds of the Pacific Gas & death testator owned no Pacific Gas & death testator owned no Pacific Gas & Electric bonds. The trial court found that the bequest was specific and that said legatee should receive nothing under said bequest. Upon appeal the District Court of Appeal held that the bequest in question was a general bequest and reversed the order of the lower court. No petition for a hearing in the Supreme Court was filed. In the course of its opinion the court said:
‘The problem as to whether a particular bequest is specific, general, or demonstrative has many times been considered by the courts. The cases from the various jurisdictions have not been entirely consistent in their determinations. Running through the cases, however, from this and other jurisdictions, are certain fundamental concepts which have been almost universally adopted. Thus, regardless of statutory definitions, see sec. 161, Prob.Code, the fundamental and controlling factor is the intent of the testator at the time the will was drafted as expressed in the will considered as a whole and in light of the surrounding circumstances. (In re Estate of Jepson, 181 Cal. 745, 186 P. 352; see cases collected 26 Cal.Jur. p. 1038, sec. 316; 69 Cor.Jur., p. 925, sec. 2095; 4 Page on Wills, Lifetime Edition, p. 101, sec. 1392. The intention to be determined is whether the testator intended to give a specific thing, and that alone, or whether he intended to give a bequest that, in any event, should be paid out of his general estate. In determining this intent, the courts have held that there is a strong presumption that the bequest was intended to be general and not specific, and, in cases of doubt, the courts will presume that the testator intended to give a general bequest rather than a specific one. (In re Estate of Jepson, 181 Cal. 745, 186 P. 352; see discussion and cases collected 4 Page on Wills, Lifetime Edition, p. 101, sec. 1392 at pp. 105, 106; 69 Cor.Jur., p. 926, sec. 2096. ‘In applying these rules to bequests of stocks, bonds and other securities it is quite generally held that ‘A gift of a certain number of shares of stock bonds, and the like, described by the corporation, obligator, and the like, or by value or quantity, but not indicating any specific lot of such securities, is a general legacy; even if testator owned the exact number of such securities, or if such securities were in certificates of deposit of such denominations that any one would satisfy the provisions of the will. * * * Even if the bonds are described by number, the gift may be general, if the language does not show that testator intended to pass bonds which he owned at his death.’ (4 Page on Wills, Lifetime Ed., p. 122, sec. 1397.)
‘There are many other cases holding that a bequest of a stated number of shares of stock of a designated corporation without descriptive words of ownership showing an intent to give the specific shares, is general and not specific. A few such cases are Palmer v. Palmer’s Estate, 106 Me. 25, 75 A. 130, 19 Ann.Cas. 1184; Johnson v. Goss, 128 Mass. 433; In re Snyder’s Estate, 217 Pa. 71, 66 A. 157, 11 L.R.A.,N.S., 49, 118 Am.St.Rep. 900, 10 Ann.Cas. 1188; Benson v. Gerhart, 241 Ill.App. 376; Evans v. Hunter, 86 Iowa 413, 53 N.W. 277, 17 L.R.A. 308, 41 Am.St.Rep. 503; In re Malone’s Estate, 143 Misc. 657, 257 N.Y.S. 837.
‘If the rules above set forth are applied to the facts here involved there can be no reasonable doubt but that the trial court incorrectly determined that the bequests here involved were specific in nature. The will, when read as a whole, discloses a clear intent on the part of the testator to care for his mother, or, in the event of her death, his brothers, and to leave the church which he attended as a child, substantial bequests. This intent to give these named legatees substantial bequests is clearly indicated by the provision that these bequests were not to be lessened or diminished by payment of inheritance taxes thereon. This interpretation does not lead to a result which will render the rest of the family destitute if the bequests are held general, because the other natural objects of his bounty, his wife and son, are adequately provided for in the disposition of his substantial estate. When these facts are considered, together with the strong presumption in favor of an interpretation in favor of a general bequest, there can be no reasonable doubt but that the bequests are general. As already pointed out, the fact that the testatrix owned ten of the designated bonds when he bequeathed seven of them to the named legatees is not sufficient to overcome the presumption.’
Appellant states: ‘Applying the rules set forth above in Re Estate of Jones it becomes apparent that there are much stronger reasons for holding the bequests in Paragraphs Sixth and Eighth of the will here considered to be general bequests than existed for the same holding in Re Estate of Jones.’
We do not believe that the Jones case, properly analyzed and considered, either compels or justifies the conclusion that the bequests involved in the instant case are general and not specific. The bequest in the Jones case was of ‘two one thousand dollar * * * five percent bonds,’ and, in view of the fact that the bonds then owned by the testator were unregistered bearer bonds, it could be held reasonably that such bequest was in effect a pecuniary bequest in which the nominal subject matter of the bequest is mentioned as a standard of value, and hence was a general bequest. But if the language of the Jones case must be considered as holding that bequests like the bequests in the instant case are general bequests, then we believe it is contrary to rules laid down in Re Estate of Daly, supra, and the other California cases hereinbefore cited.
As already stated, whether a bequest of a security is specific or general depends on the intentions of the testator at the time the will was drafted, as expressed in the will considered as a whole and in the light of the surrounding circumstances. The plain language of a will may not be disregarded but the surrounding circumstances may aid in its interpretation by throwing light upon the intention of the testator. In paragraph Sixth testator stated that ‘as a final and personal bequest, I give and bequeath to each of them [his children] Five Thousand (5,000) shares of the capital stock of the Belridge Oil Company, which shares are now represented in my estate by trustees’ certificates.’ In paragraph Eighth he stated: ‘I give and bequeath to Helen S. Peterson * * * Five Thousand (5,000) shares of the capital stock of Belridge Oil Company, which shares are now represented by trustees’ certificates, and in addition thereto, the sum of Thirty Thousand Dollars ($30,000.00) in cash.’
We believe that the language of these bequests comes clearly within the definition of a specific bequest in subdivision 1 of section 161 of the Probate Code, which states that ‘A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator, is specific.’ It is clear to us that the testator intended by said language to make a bequest of 5,000 shares of stock to each of said legatees, and that the particular stock covered by the bequest was the stock that was represented by trustees’ certificates. To hold that such bequests, so worded, are general bequests, that the testator only mentioned the 5,000 shares as a standard of value or quantity and did not intend to make a specific bequest of said shares of stock, is not only to do violence to the language itself but also the take a very unrealistic view of the undoubted inintentions of the testator. It is difficult to believe that if the testator had intended to make his bequest to appellant of the 5,000 shares of stock represented by trustees’ certificates merely as a standard of value or as a pecuniary bequest, he would have coupled it with a bequest of $30,000 in cash, as his estate was ample enough to have enabled him to make a much larger cash bequest.
Neither does a consideration of the surrounding circumstances as shown by the extrinsic evidence aid the position of appellant. The testator was a lawyer of many years standing. The will was executed on December 7, 1940, in Washington, D. C., where testator was then residing with his wife. The property settlement agreement, under which his wife received 10,000 shares of Belridge Oil Company stock, was not executed until February 26, 1941, and it is recited therein that testator and his wife were living in the same house up to January 2, 1941. Appellant argues that the property settlement agreement under which the number of shares owned by testator was decreased from 40,000 to 30,000 must have been under consideration by testator at the time the will was executed, but it is extremely unlikely that he would have bequeathed 35,000 shares of stock if he had any intention of reducing his holdings below that amount. The fact that testator and his wife were living together for almost a month after the will was executed would indicate that differences arose after the date of the will which resulted in their separation and in the agreement of February 26, 1941. Undoubtedly the testator, an experienced congressman and lawyer, knew when he transferred the 10,000 shares to his wife that his holdings were reduced to 30,000 shares, and also understood the legal effect of such transfer. It may be that he intended thereafter to make some changes in his will, but, although he lived more than a year and a half after transferring the 10,000 shares to his wife, he did not make any changes in his will, and this court has no power to do what the testator himself failed to do.
Another factor which the trial court was entitled to, and doubtless did, take into consideration, as part of the extrinsic evidence in the case, was the fact that the stock of the Belridge Oil Company has never been traded or listed on any stock exchange and that there has been comparatively few sales of such stock. Furthermore, about 61% of the stock of said corporation, including the shares of the testator, was subject to a voting trust agreement and the owners held voting trust certificates. These shares were, on the date of decedent’s will, held by the members of only eight families and were in only 33 ownerships, and between the date of the creation of the voting trust in 1937 and September 17, 1942, the date of testator’s death, there were no sales of shares subject to the voting trust. The testator was a director of Belridge Oil Company and a trustee under the voting trust and was, of course, aware that the stock was closely held and not listed or traded on any stock exchange, and that it would be impossible to acquire additional shares except at a price disproportionate to their value. Such a factual situation, which appears from the extrinsic evidence, makes it fairly inferable that the testator, who at the date of the will owned sufficient shares to satisfy the bequest, intended that the bequest should be satisfied out of his own shares and not otherwise.
We conclude, therefore, that the trial court correctly determined that the bequests in both article ‘Sixth’ and ‘Eighth’ of the will are specific bequests.
In addition to holding that the bequests in paragraphs ‘Sixth’ and ‘Eighth’ were specific the court decreed, in view of the fact that the legatees named in paragraph Sixth are children of decedent and that appellant, the legatee named in paragraph Eighth, is a stranger in blood, ‘the abovementioned abatement or ademption to the extent of 5,000 shares in the bequests of shares of said Belridge Oil Company * * * should be suffered and borne in toto by said Helen S. Peterson, in accordance with the provisions of Section 752 Probate Code of California.’
Said section 753 reads as follows: ‘Order of abatement of legacies. [Priority of legacies to spouse or kindred.] Unless a different intention is expressed in the will, abatement takes place in any class only as between legacies of that class, and legacies to a spouse or to kindred shall abate only after abatement of legacies to persons not related to the testator.’
Appellant argues that if this court should uphold the finding of the probate court that the bequests are specific, then in view of the partial ademption, the children and appellant should share pro-rata in the number of shares remaining, each to take one-seventh of the 30,000 shares. In this connection appellant contends (1) that section 752 of the Probate Code does not apply in a case where there is a deficiency of assets to satisfy legacies but only in a case where there is a deficiency of assets to pay debts, and (2) that if it should be held that the section applies in a case where there is a deficiency of assets to satisfy legacies, the preference which it sets up in favor of the spouse or kindred of a testator as against strangers in blood is not to be applied in the present case for the asserted reason that a ‘different intention is expressed in the will.’
Appellant’s argument that section 752 of the Probate Code is not applicable in a case where an abatement becomes necessary because of an insufficiency of assets to satisfy bequests is based upon the decision of the Supreme Court in Re Estate of Apple, 66 Cal. 432, 6 P. 7, with respect to section 1361 of the Civil Code upon which, in part, section 752 of the Probate Code was based. Said section 1361 then read as follows: ‘Sec. 1361. Legacies, how charged with debts. Legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator.’
In Re Estate of Apple decedent was a resident of Nevada. It appeared that after paying the debts of decedent and the expenses of administration there were only $19,000 in bonds to satisfy bequests of $20,000 in bonds to decedent’s son and $10,000 in bonds to strangers. The probate court held that there should be a total abatement of the bequests to strangers and an abatement to the extent of $1,000 only in the bequests to the sons. The Supreme Court modified the judgment by requiring a proportional abatement among the two sons and the strangers. It did this upon two grounds: (1) that the devolution of the decedent’s estate was dependent upon the law of Nevada because the decedent was a resident of that state, and the law of Novada did not favor bequests to relatives as against similar bequests to strangers, and (2) that the provisions of section 1361 of the Civil Code which gave preferential rights to kindred applied only to the abatement of legacies made necessary for the payment of debts, and did not apply to an insufficiency of assets to satisfy bequests.
In view of the fact that the court held that the law of Nevada controlled and that the law of that state made no distinction between legacies to kindred and legacies to those not related, the second ground of the opinion expressing the view that even if the law of California should govern the same result would follow, may well be regarded as obiter dictum. But assuming that it is not, the opinion in Re Estate of Apple is not controlling at this time because of the radical changes in the statutes involved. As hereinbefore set forth, the heading to Civil Code section read: ‘Legacies, how charged with debts,’ and, as pointed out in numerous decisions, a heading to a code section is entitled to great weight in determining the meaning of a section. (See Sharon v. Sharon, 1888, 75 Cal. 1, 16, 16 P. 345; Keyes v. Cyrus, 1893, 100 Cal. 322, 325, 34 P. 722, 38 Am.St.Rep. 296; Southlands Co. v. City of San Diego, 1931, 211 Cal. 646, 297 P. 521; Wall Estate Co. v. Standard Box Co., 1912, 20 Cal.App. 311, 128 P. 1020; In re Wilson, 1916, 30 Cal.App. 567, 158 P. 1050; Lynch v. Lynch, 1924, 69 Cal.App. 66, 230 P. 462; In re Forthmann, 1931, 118 Cal.App. 332, 5 P.2d 472; Gonzales v. Superior Court, 1935, 3 Cal.2d 260, 44 P.2d 320.)
But in 1931 the Probate Court was enacted and sections 1361 and 1362 were specifically repealed and were superseded by section 752 of the Probate Code. As originally enacted the final clause of said section 752 read ‘and legacies to a spouse or to kindred are chargeable only after legacies to persons not related to the testator.’ Neither in its heading nor in its body did section 752 limit the preference which it accords to relatives, to cases where assets have been used to pay debts. The heading to the section is ‘Order of abatement of legacies. [Priority of legacies to spouse or kindred.]’ This heading is general in character and gives a spouse or kindred priority over strangers for the protection of legacies whenever there is a deficiency of assets whether to pay debts or to satisfy legacies. If there were ever any doubt as to the correctness of this construction of section 752, it is settled by the decision in Re Estate of Wever, 12 Cal.App.2d 237, 55 P.2d 279, in which case a hearing was denied by the Supreme Court.
In the Wever case the general legacies under the will aggregated $59,000. $25,000 was given to kindred and the remainder to persons not related. Values had so decreased that at the time of death there was but $28,000 to meet all bequests. The appellant contended that legacies to persons not related to the testator abated first and the court so held. Referring to the fact that the Apple decision was based on the position of the code sections the court said, 12 Cal.App.2d at page 240, 55 P.2d at page 280: ‘As the arrangement of the Code sections was relied on in the interpretation given in the Apple opinion, their rearrangement in the Probate Code has a significant bearing upon the interpretation of the sections as they now stand.’ The court then reviewed sections 750, 751 and 752 of the Probate Code and concluded: ‘The obvious intention of the sections is that, ‘unless a different intention is expressed in the will,’ legacies to spouse and kindred shall be preferred over other legacies of the same class when the property is insufficient to pay all such legacies in full.’ See, also, In re Estate of Flint, 40 Cal.App.2d 132, 104 P.2d 516; In re Estate of De Santi, 53 Cal.App.2d 716, 128 P.2d 434.
It is particularly significant that after the decision in Re Estate of Wever in 1936, the legislature, in 1939, amended the final clause of section 752 by substituting for the words ‘are chargeable only after legacies to persons not related to the testator ,’ the words ‘shall abate only after abatement of legacies to persons not related to the testator.’
This amendment, coming after the decision in the Wever case, shows that the legislators desired to make it doubly certain that the rule laid down in that case was correct and should be followed.
The final contention of appellant is that the preference which Probate Code section 752 sets up in favor of spouse or kindred should not be applied in the instant case because said section begins with the words ‘unless a different intention is expressed in the will.’ Appellant argues that ‘in this case it very definitely appears that a different intention is so expressed.’ The probate court found that ‘the decedent’s will expresses no different intention on the part of the decedent with respect to the persons by whom or the manner in which abatement or ademption should be suffered’; and we believe there is ample support for this finding both in the language of the will itself and in the extrinsic evidence. The facts that the bequest to the children preceded the bequest to appellant in the will, and that testator stated that he was making the bequest to his children ‘as a final and personal bequest,’ certainly do not lend weight to the argument of appellant that the language of the will indicates that she should have preferential rights over his children.
No other points made in the briefs require discussion.
In view of the foregoing, we conclude that the probate court correctly determined that the bequest of the Belridge shares made in articles ‘Sixth’ and ‘Eighth’ of the will were specific in character, that because of the deficiency in the estate of 5,000 shares of said stock necessary to satisfy the bequests in the two articles, an ademption resulted and that the ademption of 5,000 shares must be charged in its entirety against appellant’s bequest in accordance with the provisions of section 752 of the Probate Code. The decree which gives effect to such determination should be and the same is hereby affirmed.
ADAMS, P. J., and THOMPSON, J., concur.