IN RE: SWAN'S ESTATE.*

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District Court of Appeal, Second District, Division 1, California.

IN RE: SWAN'S ESTATE.* SWAN et al. v. BLOOM et al.

Civ. 10249.

Decided: August 05, 1935

Wilton W. Webster, of Pasadena, for appellants. I. R. Rubin and Norman W. Neukom, both of Los Angeles, for respondents.

Frances B. Swan died January 31, 1933. By the terms of the fourth paragraph of an olographic will made approximately ten years prior to her death, it is provided:

“Fourth: I hereby bequeath to my brother, George C. Bloom, if he be living, at the time of my decease, the sum of Fifteen thousand dollars, ($15,000.00) outright, but if said brother be not living at the time of my decease, then, in that case only, I give to the Pacific Southwest Trust and Savings Bank of Los Angeles, and its successors, the sum of Fifteen thousand dollars ($15,000.00) in Trust, however, for the following purpose, and for no other, viz: To invest and keep invested, said Trust Fund, in first mortgage, or other equally as safe securities, at the best interest safely obtainable, as long as this Trust continues, and to pay the net income received therefrom with any accrued interest thereon, as long as this Trust shall continue in semi annual payments, and in equal proportion to Minnie Perkins Bloom (wife of George C. Bloom) and to their two sons, George Thompson Bloom and Burton Fontaine Bloom, until said Burton Fontaine Bloom shall arrive at the age of forty years (40) and if he shall not live so long, then until George Thompson Bloom shall arrive at the age of forty-five years, and if he shall not live so long, then upon the death of said George Thompson Bloom, said Trust shall terminate, and said Trustee shall pay over to said Minnie Perkins Bloom, if she shall then be living, one third of the entire Trust Fund, of Fifteen thousand dollars ($15,000.00), and the remaining two-thirds of said Trust Fund, namely, Ten thousand dollars ($10,000.00) shall be equally divided, between the children of said George Thompson Bloom, and of Burton Fontaine Bloom, if any children survive them, but if no children shall survive said George Thompson Bloom or Burton Fontaine Bloom, then such an ones portion shall revert to my residuary estate.”

George C. Bloom, brother of the testatrix, predeceased his sister, and at the time of the death of the latter George Thompson Bloom was past forty-five years of age, and Burton Fontaine Bloom was past the age of forty years. Neither of the two sons of George C. Bloom had any children at the time the will in question was written, or at any time prior to the death of testatrix, or at all. Upon filing of the first account-current, report, and petition for partial distribution, decedent's executors, appellants herein, requested an interpretation of the excerpted portion of the will. At said hearing, appellants stipulated that $5,000 should be paid to Minnie Perkins Bloom, wife of George C., but that, since there were no children of either of the nephews to take under such bequest, that the remaining $10,000 should revert to the residuary estate. The nephews contended that the remaining $10,000 of the bequest should be distributed equally between them. The trial court sustained the contention of the nephews and made its order requiring distribution in accordance with their request. This appeal is from that order. The hearing with reference to the instant question was had upon stipulated facts, some of which have already been recited. In addition, the litigants agreed that the court might accept and consider as facts the following: “* * * That during the life of George C. Bloom, the father of Burton Fontaine Bloom, and the life of the decedent, Frances B. Swan, there was a strong bond of love and affection existing between said brother and sister; and likewise, between the family of Frances B. Swan and the family of George C. Bloom; that there was a strong bond of love and affection existing between the testatrix and Burton Fontaine Bloom, her nephew, and between the testatrix and George Thompson Bloom, also her nephew, and that said Burton Fontaine Bloom and George Thompson Bloom are the same persons as named in the will of the testatrix in paragraphs fourth, fifth, seventh and twenty-third; * * * that the estate is fully solvent and is fully able to take care of all bequests, administration expenses and claims that may exist against the estate, and still leave a substantial sum.”

A reading of the language of the bequest indicates that no provision is made for the nephews upon the termination of the trust provided for, but that there is provision made for the surviving children of the nephews, in the event there were any such. Respondents contend that a bequest of two-thirds of the corpus of the trust was made to them by implication and assert that the testatrix intended that if her brother George predeceased her, that his wife and two children (the two nephews) should have the income from the trust for the duration thereof; that upon the termination of the trust, the corpus thereof should be divided equally between the wife of George C. Bloom and the two nephews of the testatrix, but if the nephews or either one of them died, then the portion of such deceased nephew should go to his surviving children, if any, and if both nephews or one of them died without surviving children, then the portion which the nephew or surviving children might have taken should go to the residue of her estate.

It may be conceded, as respondents contend, that a will is to be liberally construed, so as to effect as far as possible the intention of the person writing it (Estate of Wilson, 65 Cal. App. 680, 697, 225 P. 283; Estate of Hoytema, 180 Cal. 430, 432, 181 P. 645); and that of two modes of interpretation that one is preferred which will prevent intestacy; and that when an uncertainty arises on the face of a will, the intention is to be ascertained from the words of the will, taking into account the circumstances under which it was made (Probate Code, §§ 101, 102, 105; Estate of Henderson, 161 Cal. 353, 357, 119 P. 496; Estate of Koche, 8 Cal. App. 90, 96 P. 100). It may also be conceded that: “The facts relating to the decedent's fortune, family and affections afford reliable proof, not only in respect of the issue as to the existence of testamentary intention, but also with respect to a controversy as to the persons who were intended to be the objects of his bounty and the extent of the benefits to be bestowed upon them.” 26 Cal. Jur. p. 893, § 209. It may likewise be granted that when a judicial construction is left in doubt by the language of the will, the court will attribute to the disputed expression a meaning that is favorable to the natural or disclosed objects of the testator's bounty. Estate of Hoytema, 180 Cal. 430, 432, 181 P. 645.

In the instant case, however, there is no question of intestacy, as the bequest in question specifically provides that the trust corpus, in the event the surviving children of the nephews do not take shall go to the residuary devisee. Furthermore, no rule is more universally accepted than the one that the intention of the testator must, in the absence of ambiguity calling for extrinsic evidence, be gathered from the four corners of the will itself. It has already been pointed out that there is no ambiguity in the bequest under consideration with reference to the nephews. Any ambiguity which does exist is with reference to the children, of whom there are none. With any such ambiguity, we are not concerned. Reading the will as a whole and taking into consideration the stipulated facts, as we are urged to do by respondents, we find nothing which indicates that the testatrix did not intend just exactly what she said. On the contrary, a reading of the will confirms us in the conclusion we have reached. Thus in setting up a similar trust in the same will for a sister and daughters of such sister, the testator set aside $10,000, the income from which was to be paid to said sister, Mary Bloom Ives, so long as she shall live, “and at her death, the net income of said Trust Fund, of said Ten thousand dollars ($10,000.00), shall then be paid in like manner, by said Trustee, in equal division, to the daughters of said Mary Bloom Ives who are then living, namely, Anna Josephine Ives & Mary Edwina Ives; and Dorothy Cordelia Ives, until the youngest daughter, shall have reached the age of forty years, when said Girard Trust Co. shall pay over the principal, of said Trust Fund in equal proportion to the three daughters, above named, but if any of said daughters be not living, at the time of the distribution of this Trust Fund, then any child or children, of such deceased daughter of said Mary Bloom Ives, shall share equally, in the said Mother's share, by right of representation, but if no children shall survive any of these daughters, then such an ones share, shall be divided equally between George Thompson Bloom, Burton Fontaine Bloom, and Caroline McFarland Bloom, or to their heirs, if none of these legatees are then living.” (Italics ours.)

From the foregoing, it will readily be seen that with reference to the Ives trust, the testatrix specifically provided for the very contingency the nephews claim she intended to provide for in the bequest under construction. Even though the testatrix wrote her own will, it can hardly be tenably argued that she did not know how to do what she wanted to do, when in the same will she actually and properly provided in one trust for the very contingency which it is claimed she either forgot to provide for or did not know how to provide for in the other. Furthermore, there are outright bequests (albeit small in comparison with the size of the estate) to each of the nephews in another portion of the will. The nephews argue from this that such bequests demonstrate the love and affection of the testatrix toward each of them, and her desire to give more of her estate to each of them. This contention on the part of respondents may be sound, but we feel that it may be argued with equal cogency that it also indicates an intention to give no more than the plain intent of the language used does in fact give. In construing wills, it is undoubtedly true that except for the enunciation of general principles, precedents are of little aid, since situations which are exactly parallel are rare. Estate of Coleman, 189 Cal. 612, 619, 209 P. 571; Estate of Henderson, 161 Cal. 353, 357, 119 P. 496. Such cases, however, as have been cited to us on the doctrine of bequest by implication invoked by respondents indicate that such doctrine has no application to the facts before us. In re Reinhardt's Estate, 74 Cal. 365, 16 P. 13; Estate of Franck, 190 Cal. 28, 210 P. 417; Estate of Blake, 157 Cal. 448, 108 P. 287; Estate of Vizelich, 129 Cal. App. 347, 18 P.(2d) 773.

Judgment is reversed, and the trial court is directed to enter a judgment which so construes paragraph fourth of the will that the whole of said bequest therein made, except the sum of $5,000 in favor of Minnie Perkins Bloom, shall be declared to revert to the residue of said estate, and pass with such residue to Frederick Howard Swan, as residuary legatee.

ROTH, Justice pro tem.

We concur: HOUSER, Acting P. J.; YORK, J.

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