Hearing Granted by Supreme Court Sept. 2, 1936.
Appeal from Superior Court, Los Angeles County; Arthur Keetch, Judge.
In the matter of the estate of Mary S. Davis, deceased. Separate petitions by Elizabeth S. Bancroft and by Jennie Skinner for determination of heirship and distribution of a certain part of the residuary estate, to which objections were filed by the Busy Bee Home Society and another. From the judgment, the named petitioners and John K. Davis take separate appeals.
Reversed, with instruction. COUNSEL
William L. Kuehn and Franz R. Sachse, both of Los Angeles, for appellant Elizabeth S. Bancroft.
Robert H. Gillmore, G. Randolph Miller, and Gerald C. Kepple, all of Whittier, for appellants Jennie Skinner and John K. Davis.
Ralph G. Lindstrom, of Los Angeles, for respondent Busy Bee Home Society.
James J. Kirby, of Oakland, for respondent Blanche McGavic.
ROTH, Justice pro tem.
The deceased, Mary S. Davis, left an olographic will in words and figures as follows, to-wit:
"Will of Mary S. Davis
"My Aunt Elizabeth S. Bancroft Twenty Five Hundred
"My cousen Nell Crofward Twenty Five Hundred
"Blanche McGavic Five Hundred
"My late Husbond Sistor if Living 15ifteen Hundred
"if Not Living Five Hundred to Each of Her Children
"Ida Converse of Son Diego Calif One Thousand
"If not Living Five Hundred to Each of Her Childrens
"My Friend Emma Fluke Towo Hundred and Fifty
"Donald Armstrong Two X Hundred and Fifty
"Mrs. Jennie Stricker Two Hundred and Fifty
"Mrs. Mueral Parkins Five Hundred
"Bussey Bee a children Home in Glendale California Three Hundred
"I wish all My Julerey and My Late Husbond Watch to be Sold and
"Rugs and Pictures Mirras
"All Keep Sakes of Mine to bee Sold and all Expences to be Paid
"Furnell Expenas My Cript is Paid For Beside My Husbands cript in
"I want Mr. Brown to take care off My Furonell
"All My Stocks and Real Estate to be Sold and Devied to all of the Estate.
"Mary S. Davis.
"November 11, 1934."
The last paragraph of the will, being the italicized portion, creates the controversy out of which these appeals arise. Three probable constructions are urged of the paragraph in question: First, that it means nothing and results in intestacy as to any residue. Second, that the residue is to be divided equally among the legatees named in the will. Third, that the residue is to be divided among the legatees in the will in the proportion that each legacy bears to the total of all legacies.
The trial court adopted the second construction, and, from a judgment distributing the residue in accordance with such construction, separate appeals have been taken by Elizabeth S. Bancroft, one of the named legatees and the aunt of deceased, and Jennie Skinner and John K. Davis. Jennie Skinner is the legatee named in the will as "My late Husbond Sistor. * * *" John K. Davis is a stranger to the will, but in a statement on claim of heirship, which was acted on in connection with the petition to determine heirship and for distribution of one-half of the residue of the estate filed by Elizabeth S. Bancroft, as well as on petition of Jennie Skinner for the same purpose, against which were filed the objections of respondents Busy Bee Home Society and Blanche McGavic, the latter two claiming there was no intestacy, and that the estate should be divided equally among all of the legatees named in the will, the court made its findings of fact that Elizabeth S. Bancroft was the aunt and the only direct heir at law of said deceased; that the estate of said deceased was community property; and that, at the time of the death of the predeceased husband of decedent, John K. Davis was a half brother of, and Jennie Skinner a sister of, the predeceased husband, and "are heirs at law of said Mary S. Davis, deceased, to take by virtue of the relationship of said John K. Davis and Jennie Skinner as aforesaid to * * * predeceased husband of said Mary S. Davis. * * *"
The court also found:
"5. That the assets and properties of the estate of said testate, other than stocks and real estate, were insufficient to pay claims duly allowed for payment in said estate and to pay legacies for specified sums of money as by the will of said testate required; that by the phrase, to-wit: ‘stocks and real estate’ in the last paragraph of the will of said testate, the said testatrix referred to the residuum or net distributable estate after the payment of claims and expenses of administration and after payment of legacies for specified sums of money as by the will of said testatrix required.
"6. That said testatrix intended to and did by her last will dispose of all and every portion of the estate of said testatrix, and that no part or portion of the estate of said testatrix was intestate property, and no portion of the estate of said testatrix remained undisposed of by said will of said testatrix.
"7. That by the last paragraph of the will of said testatrix, to-wit: ‘All my stocks and real estate to be sold and divided to all of the estate,’ it was the intention of said testatrix to leave and said testatrix did thereby leave the proceeds of sale of all the residuum of the estate of said testatrix * * * share and share alike, to the legatees in the will of said testatrix named, * * *." Judgment was entered in accordance with such findings.
Appellant Elizabeth S. Bancroft, who, in her petition to determine heirship and for distribution, etc., claimed that she was entitled to one-half the residue, if a construction of the last paragraph of the will resulted in intestacy, and who would be entitled to one-half under the law of any intestate portion, has abandoned the position taken by her in the trial court, and contends on this appeal that the third probable construction is the proper construction, and that the estate should be distributed in accordance therewith. Appellant Jennie Skinner, one of the legatees, on her appeal still insists that the last paragraph of the will results in intestacy, and that she is entitled to one-fourth of such intestate residue. Appellant John K. Davis, who is not named in the will, takes the same position as Jennie Skinner. Respondents Busy Bee Home Society and Blanche McGavic continue to insist that the position they took in the trial court for equal division of the residue among all legatees, which position the trial court adopted, is the correct one. It is obvious from what has been said that both appeals will be considered together.
In Re Estate of Lloyd, 106 Cal.App. 507, at page 508, 289 P. 892, 893, the court says: "Section 1317 of the Civil Code [now section 101, Probate Code] says in part that ‘a will is to be construed according to the intention of the testator,’ which intention is arrived at by construing all of the parts of a will in relation to each so as to form, if possible, a consistent whole. * * * That this is the primary purpose of all interpretation of wills there can be no possible doubt."
To this well-settled rule of construction may be added a few others, which are as readily accepted, to wit: The intention must be gathered from the four corners of the will. "* * * expressed intent will not be varied under the guise of correction because the testator misapprehended its legal effect." In re Estate of Young, 123 Cal. 337, 344, 55 P. 1011; In re Estate of Doane, 190 Cal. 412, 213 P. 53; In re Estate of Fritze, 85 Cal.App. 500, 505, 259 P. 992. Intestacy is to be avoided. Probate Code, § 102. Heirs are not to be disinherited in favor of strangers. In re Estate of Norrish, 135 Cal.App. 166, 26 P.2d 530; In re Estate of Wilson, 65 Cal.App. 680, 689, 225 P. 283; In re Estate of Hartson, 218 Cal. 536, 24 P.2d 171; Schouler on Wills (6th Ed.) pp. 1007 and 1008. Where there is ambiguity, the presumption is that the testator intended his estate to go according to the laws of succession. In re Estate of Fisk, 182 Cal. 238, 246, 187 P. 958; 69 Cor.Jur. 97; 28 R.C.L. 229; Rood on Wills (2d Ed.) p. 369. Finally, it is settled that "an estate" is not an entity and cannot take under a will. In re Estate of Glass, 164 Cal. 765, 767, 130 P. 868; Gardner v. Anderson, 114 Kan. 778, 227 P. 743; Probate Code, § 27.
With these principles in mind, we approach the construction of the paragraph in question. It is apparent even from a superficial scrutiny of the will that, while illiterate, testatrix had a clear plan of distribution in mind. Also, that she had clearly in mind the objects of her bounty, for she listed all her heirs with one exception, to wit, her husband’s half-brother, appellant John K. Davis, and bequeathed to her heirs the substantial part of her estate. Since an estate is not an entity, and cannot receive under a will, it follows that testatrix could not have intended to make any bequest to any estate, and that she intended the proceeds of sale to become part of her own estate.
We have read the whole will "in the light of the context and the circumstances" (In re Estate of Blake, 157 Cal. 448, 449, 108 P. 287), and do not feel warranted in holding that the testatrix intended that the residue of her estate be divided either according to the second or third construction. The language and plan of the will in the light of all the circumstances points to an intestacy as to the residue of the estate. The record does not show what the assets of the testatrix were at the time the will was written, at the time of her death, or at the time distribution of the estate was sought. It does appear from the findings made by the trial court that "the assets and properties of the estate of said testatrix other than stocks and real estate, were insufficient to pay legatees the specified sums of money as by the will of said testatrix required. * * *" (Italics ours.)
It is clear from the findings at least that, unless the stocks and real estate were sold, that the specific legacies could not be paid. It will be noted, too, that in the paragraphs of the will preceding the last, the testatrix gave directions to sell jewelry, rugs, pictures, and keepsakes. It is fair to assume from the record that, even though all this miscellaneous personal property was sold, the estate did not have on hand the amount of cash sufficient to pay the legacies and other charges. It should also be noted that the testatrix said nothing as to what was to become of the cash realized from the sale of the miscellaneous personal property mentioned. These proceeds would go to her estate, even though she made no specific direction to that effect. If testatrix had merely directed the sale of stocks and real estate, the proceeds of such sale would likewise go to her estate. It seems to us that the language "divided to all of the estate" adds nothing to the will. Since there was not enough cash in the estate to pay the specific legacies, and "all Expences to be Paid, Furnell Expenas" to say nothing of the probate expenses and any claims that might be filed, it becomes apparent that testatrix desired that all miscellaneous personal property, as well as the stocks and real estate, should be sold, and the money so obtained to be used to pay all claims, charges, probate expenses, and the specific legacies set out in the will. If the testatrix had intended that the legatees, as legatees, should receive more than the specific sums bequeathed, it would have been a simple matter for a person so blunt and direct, as testatrix undoubtedly was, to have directed the payment of all expenses and then to devise and bequeath the residue to the legatees in varying percentages. This she did not do, and we fell that we have no right to say that she so intended. The law abhors intestacy, but it is equally abhorrent that a court should make a will. In re Estate of Fritze, 85 Cal.App. 500, 505, 259 P. 992; In re Estate of Young, 123 Cal. 337, 343, 55 P. 1011; In re Estate of Doane, 190 Cal. 412, 213 P. 53.
It is also a rule of construction that ambiguous language in a will should be interpreted so as not to disinherit heirs at law or next of kin. 69 Cor.Jur. 97; 28 R.C.L. 229; Rood on Wills (2d Ed.) 369; In re Estate of Norrish, 135 Cal.App. 166, 26 P.2d 530; In re Estate of Hartson, 218 Cal. 536, 24 P.2d 171. In 69 Corpus Juris at page 97, § 1149, it is said: "Where an ambiguity exists in a will, unless there is manifest intention to the contrary, a presumption that the testator did not intend to disinherit his heirs at law or next of kin, but intended that his property should go in accordance with the laws of descent and distribution, will be applied as an aid in construing the will; and a testator’s heirs at law or next of kin will not be disinherited by mere conjecture, but only by express words in the will or by necessary implication arising therefrom. An intention to disinherit an heir will not be imputed to a testator by implication, nor where he uses language capable of a construction which will not so operate. Where one construction of an ambiguous will leads to the disinheritance of an heir, and another to a result favorable to the heir, the latter construction will be adopted in the absence of an expressed intention of the testator to the contrary, and a construction will be favored which conforms most nearly to the general laws of inheritance, and which will prefer those of the blood of the testator to strangers or to persons not so closely related to the testator, and which will favor those nearest of kin to the testator."
We are of the opinion, therefore, that deceased died intestate as to her residuary estate; that Elizabeth S. Bancroft, appellant and aunt of said decedent, is entitled to one-half, and appellants Jennie Skinner and John K. Davis, collateral heirs of said decedent, one-fourth each of said intestate residue. Since the facts are not in dispute, the judgment is reversed, and the trial court is instructed to correct its decree of distribution in accordance with this decision.
We concur: HOUSER, P. J.; DORAN, J.