IN RE: TODD'S ESTATE.

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District Court of Appeal, Third District, California.

IN RE: TODD'S ESTATE. TODD v. TODD et al.

Civ. 6374

Decided: February 27, 1940

Henry E. Monroe and Julia M. Easley, both of San Francisco, and Geary & Geary and C.J. Tauzer, of Santa Rosa, for appellant. Grove J. Fink and Garton D. Keyston, both of San Francisco, for respondents.

This is an appeal from a decree of final distribution, which distributed the entire estate of the decedent to his surviving wife, Inez Todd. Ridgeway Addison Todd, the minor grandson of decedent, presents this appeal upon the ground that the decree so distributing the entire estate to Inez Todd is contrary to law, in the following particulars:

First, the will of decedent makes no mention whatsoever of the grandson, Ridgeway Addison Todd, and therefore the grandson would be entitled to distribution to him of an undivided one-half of the estate as a pretermitted heir under the provisions of section 90 of the Probate Code.

Secondly, the father of said grandson, to-wit: Addison Todd, the son of the decedent, and who is named as a devisee in the will, predeceased the decedent, leaving him surviving his minor son, Ridgeway Addison Todd. Therefore the minor child would be entitled to distribution of one-half of the estate under the provisions of section 92 of the Probate Code, if he does not take as a pretermitted heir under section 90 of the Probate Code.

Thirdly, the rule enunciated in Estate of Childs, 21 Cal.App.2d 103, 68 P.2d 306 (which was followed in the instant case), disregards certain well-established principles of law and should not be accepted as a precedent.

The learned trial judge, Hilliard Comstock, has, we believe, correctly stated the law and the facts in this case, and we adopt his opinion as the opinion of this court, as follows:

“There are before the court the petitions of the executor and Ridgeway Addison Todd, a minor, by his guardian, Gwen Overton Todd, for distribution of the estate.

“Rush B. Todd made his will on February 17, 1925. Among the provisions thereof are the following:

“ ‘Paragraph Third: I hereby declare that I am married, that my wife's name is Inez Todd, and that I have one child living, to-wit, a son, Addison Todd.

“ ‘Paragraph Fourth: I hereby declare that all property standing in my name is my separate property.

“ ‘Paragraph Fifth: I hereby give, devise and bequeath all of my estate, whether the same be real, personal or mixed, and of whatsoever kind or character, and wheresoever the same may be situated, of which I may die seized or possessed, equally, share and share alike, to my said wife, Inez Todd, and my said son, Addison Todd, or to the survivor of them.’

“Ridgeway Addison Todd was born on May 7, 1931. Addison Todd, the son of Rush Todd, deceased, died on September 28, 1935, and left surviving him, as his sole issue, Ridgeway Addison Todd.

“The proper distribution of the estate requires a construction of the quoted portions of the will.

“Section 92 of the Probate Code reads as follows:

“ ‘Death of devisee. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute another in his place; except that when any estate is devised or bequeathed to any kindred of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, or is dead at the time the will is executed, but leaves lineal descendants surviving the testator, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator.’

“Said section is based upon former sections 1310 and 1343 of the Civil Code, and agreeably to the language of section 2 of the Probate Code should be construed as continuations thereof and not as a new enactment. The first portion of Section 92 is practically identical with section 1343 of the Civil Code and the part following the semicolon and the word ‘except’ is in substance section 1310.

“Provisions of statutes such as former section 1310 of the Civil Code and the corresponding portion of section 92 of the Probate Code are designed to prevent lapses of devises and legacies to relatives and bestow them upon their lineal descendants where a lapse would otherwise occur, but are not intended to subvert the will of the testator where he has clearly expressed his intent that a lapse shall occur or a substitution be made. Thus, in Estate of Goetz, 13 Cal.App. 292, 109 P. 492, where a legacy of $30,000 was provided for a nephew and by the will all legacies were to lapse and fall into the residue of the estate if legatees should die before the testator, and the nephew predeceased the testator and his children claimed the legacy by virtue of section 1310 of the Civil Code, it was held that the intent of the testator that a lapse should occur controlled even though in language less clear and distinct than that of the statute and that no legacy was provided for the children either by statute or by the will as the intent of the testator to direct the disposition of the fund otherwise could be ascertained.

“ ‘Substitution, with respect to wills, is the putting of one person in the place of another so that he may, in default of ability of such other, or after him, have the benefit of the devise or legacy. It is the act of the testator in naming a second devisee or legatee who is to take the gift on failure of the original beneficiary, or after him. A gift is said to be substitutional when provision is made in the will for some one to take the gift in the event of the death of the original beneficiary before the death of the testator.’ Thompson on Wills, p. 413, par. 276.

“I agree with the argument of counsel for Inez Todd that the words ‘or the survivor of them’ found in the will would be practically meaningless if they were not held to evidence a clear intention of the testator that if either Inez Todd or Addison Todd died before the testator and the other survived the testator such survivor should take the entire gift. Such is clearly the effect of the greater weight of authority. The several cases cited by counsel support his position in this regard. The language employed in Galloupe v. Blake, 248 Mass. 196, 142 N.E. 818, 819, was almost identical with that in the case at bar. The will provided ‘To my cousins, Mrs. Sadie Holland and Wellington Frothingham, of said Brooklyn, children of Abraham R. Frothingham, in equal shares, or the survivor of them, I give the sum of five thousand ($5,000) dollars.’

“In construing the will the court said: ‘The words “or the survivor of them” are meaningless unless she intended that the survivor [of them] should take the whole amount.’

“In our own state a strong indication of how the Supreme Court would construe the will in question is given in the language of Estate of Hittell, 141 Cal. 432, at page 436, 75 P. 53, 54. There the testator failed to anticipate changed conditions and made no provision for the event of the death during his lifetime of one of two named devisees, which, so said the court, ‘he could easily have done, if he so desired, by giving the property to them, or to the survivor of them.’

“The guardian relies strongly upon the Illinois case of Schneller v. Schneller, 356 Ill. 89, 190 N.E. 121, 92 A.L.R. 838. If this case did not appear to me to be contrary to the views of the principal text writer, to the principles enunciated in the California cases above cited and the statutes in this state, and to the weight of authority as collected even in the annotations following the reported case itself in 92 A.L.R. commencing at page 846, it would be somewhat persuasive, though it seems to me to strain a point to uphold the statute of descents against the plain language of the will, under which the cardinal rule of construction should prevail. Its weight as authority is considerably shaken by the strong dissent of two justices and the qualified approval of the chief justice. The annotator gives special attention to what he styles the ‘Illinois view’ as a minority rule at page 859 et seq. of the annotation and on page 860 has this to say: ‘The view of the Illinois court, that words of survivorship are not sufficient to defeat the operation of the statute against lapses, seems to have been carried to rather extreme lengths in the reported case (Schneller v. Schneller, 356 Ill. 89, 190 N.E. 121, 92 A.L.R. 838). In that case words of survivorship were attached to a gift of an absolute fee, which was neither postponed in possession by the gift of a previous life estate nor made subject to forfeiture upon the happening of a contingency; but, despite the fact that there did not appear to be any other time or contingency to which the words of survivorship could be referred other than the time of the testator's death, the court nevertheless held that they were not intended to refer to death before that of the testator. Vigorous dissent was expressed from this result by two justices, upon the ground that the use of the words of survivorship clearly and unambiguously showed that it was the testator's intention to provide for the contingency of one of the legatees dying before him.’

“The subsequent Illinois case of Hartwick v. Heberling, 364 Ill. 523, 4 N.E.2d 965, also somewhat shakes the authority of the Schneller case by limiting its application to its particular facts and applying the general rule that where a legatee dies before the testator and a clear intention to substitute another appears from the will the statute of descents does not apply.

“The general rule where words of survivorship are used is that they are to be construed as referring to the testator's death, where the language of the will does not clearly and definitely indicate that a subsequent date was intended. Thompson on Wills, p. 404, par. 263. There is nothing in the Todd will that indicates that a subsequent date was intended and the general rule is in my opinion the proper one to apply. It is accordingly held that the intent of the testator was that if either Addison or Inez Todd died before he did the one of such beneficiaries who outlived the other should take the entire gift; that such words of survivorship expressed a clear intention of substitution and that hence the latter portion of section 92 of the Probate Code (formerly section 1310 of the Civil Code) does not apply.

“But it is contended that even though the court should take the view expressed, Ridgeway Addison Todd takes the share his father would otherwise have taken as a pretermitted heir under Section 90 of the Probate Code. Said section and its former counterparts in the Civil Code have been held to apply only in favor of a child or the issue of a deceased child when he was a presumptive heir who was forgotten by the testator. A grandchild of a testator is not a presumptive heir when its parent, the child of testator, is living. Estate of Childs, 21 Cal.App.2d 103, 68 P.2d 306; Estate of Barter, 86 Cal. 441, 25 P. 15; Estate of Ross, 140 Cal. 282, 73 P. 976. This rule under the authority of Estate of Childs, supra, has not been altered by the revised language of the Probate Code which changed the wording of the former Civil Code sections, and since that case has been determined by higher authority this court does not feel at liberty to hold to the contrary. A petition for hearing by the Supreme Court, after decision by the District Court of Appeal, was denied and the case stands as authority approved by our highest court. I do not agree that what was said concerning the construction of section 90 was mere dictum. An interpretation of the section was necessary to the decision and it was based primarily upon the construction adopted.

“Had the question been one of first impression, this court would have been strongly inclined to the belief that the change effected by the inclusion in section 90 of the Probate Code of the words, ‘whether born before or after the making of the will or before or after the death of testator’, which did not occur in the repealed section 1307 of the Civil Code, evidenced a legislative intent to depart from the rule of the Barter and Ross cases and grant to all children and issue of deceased children of the testator, whether born before or after the making of the will or before or after the death of the testator, the same protection as presumptive heirs were given under the rule of those cases. It seems to me unfortunate that the question arose in a case whose facts were peculiarly those of the Childs case, as the claim of the granddaughter in that case to a separate share of the estate under both section 90 and section 92 of the Probate Code presented a situation so apparently unconscionable that it may have influenced what appears to me to be a very strained construction of section 90. The reasoning employed is not at all satisfactory or convincing to me. It is as follows, 21 Cal.App.2d on page 105, 68 P.2d on page 307: ‘We see nothing in these additional words which broaden the rights of petitioner. As pointed out in the Barter Case the words, “the issue of any deceased child,” refer only to the issue of children who may have died before the time of the execution of the will. Nothing is contained in the sections of the Probate Code which indicate that a construction should be placed upon these words different from the construction which had been placed upon section 1307 of the Civil Code. To reach this conclusion it need not be held that the additional words inserted in section 90 are without significance. These words might serve to give protection to a grandchild born after the execution of the will whose parent was dead at the time of its execution.’

“It seems to me that even though ‘as pointed out in the Barter case the words, “the issue of any deceased child” ’, may in section 1307 of the Civil Code have meant only the issue of children who may have died before the time of the execution of the will, it is unreasonable to say that the added words in section 90 of the Probate Code do not clearly mean what they say and enlarge the class of issue intended to be benefited to all of those born after the making of the will as well as before and those born after as well as before the death of the testator. The rule of statutory construction requires that we shall look first to the plain language of the statute to determine its meaning. Are we then privileged to say in the case of the language used here that it does not mean the issue of a deceased son born after the making of the will but before the death of the testator? How else can the language, ‘born before or after the making of the will’, be given its full meaning and effect? It does not seem to me sufficient to reason that the words are not without significance because they ‘might serve to give protection to a grandchild born after the execution of the will whose parent was dead at the time of its execution’. Such a contingency would rarely occur. So far as I am able to perceive, it would only happen in the case of a child of a son who was dead at the time of the execution, where the child was en ventre sa mere at the time of the death of the son. Why should it be the legislative intent to protect the child of a son and not the child of a daughter in such circumstances? And where in section 90 is any intent of that sort expressed? The judicial effort should be to give full effect to the language actually used by the legislature, not to disregard its plain, broad significance and apply a narrow and unusual construction merely because the words are not wholly meaningless. To have inserted the words in question merely to protect a grandchild born after the execution of the will whose parent was dead at the time of its execution would have been an idle legislative act, for a child en ventre sa mere at the time of the execution of the will, under well established principles, would be presumed to have been living at that time and to be entitled to all the rights of succession of a child already born.

“Notwithstanding my inability to follow the reasoning applied in the Childs case or to agree with the logic thereof, I do not feel that I can disregard it as authority. It stands as the decision of a District Court of Appeal, approved by the Supreme Court, and I deem it to be binding upon this court. It would be presumptious, indeed, for a Superior Court to disregard or attempt to overrule the decision of higher courts of its own state where the application thereof to the problem at hand is so positive.”

The decree of distribution from which this appeal is taken is hereby affirmed.

I concur in the opinion of the court, but do so with considerable reluctance in respect to the construction of section 90 of the Probate Code. As set forth in the opinion, the only authority for denying appellant any relief is Estate of Childs, 21 Cal.App.2d 103, 68 P.2d 306. The fact that the will gave the estate to the wife and to the son, “or to the survivor of them”, does not affect the situation. If said section 90 is applicable, appellant will succeed “to the same share in the estate of the testator as if he had died intestate”—(quoting from the section)—and the provision for survivorship will not be operative. In my opinion that decision fails to give full effect to the amendment made to said section in 1931, which appears in direct language to place the issue of any child, whether born before or after the making of the will, in exactly the same category as any child of a testator who is omitted from the will. I feel, however, that we are bound by that opinion upon which a hearing was denied in the Supreme Court.

PER CURIAM.

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