IN RE: BRUNET'S ESTATE.

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District Court of Appeal, First District, Division 2, California.

IN RE: BRUNET'S ESTATE.

Civ. 13648.

Decided: December 03, 1948

Marion Vecki, of San Francisco, for appellants. W. S. Solari and Albert Picard, both of San Francisco, for respondents.

In an appeal from a decree of distribution these facts appear: The holographic will of testator gave ‘To Otto Speckter or his Estate The property at Clear Lake * * *.’ Speckter was not related to the testator. Speckter died July 1, 1943, the testator died May 14, 1945. In course of administration the real property at Clear Lake was sold and the decree under attack awarded to the heirs of Otto Speckter deceased the entire proceeds of the sale of such realty.

The pivotal question involved is whether a devise to a stranger in blood ‘or his estate’ lapsed when the devisee predeceased the testator and no intention appears in the will to ‘substitute another in his place’. Probate Code, section 92. In an interpretation of a will the words used must be ‘taken in their ordinary and gramatical sense * * *.’ Probate Code, section 106. The word ‘another’ in section 92 implies another ‘devisee or legatee’ and the substitution means the naming of another devisee or legatee who would be able to take the estate in the same manner as the one named in the will.

This presents the question whether the estate of a named devisee is ‘another’ devisee within the meaning of the code section when the named devisee has predeceased the testator. The only California case directly on the subject is In re Estate of Glass, 164 Cal. 765, 130 P. 868. There the will contained the expression, ‘The balance to go to father Glass' estate.’ In a controversy directed to this provision the Supreme Court said: 164 Cal. page 767, 130 P. page 869. ‘Thomas Glass' estate is not a person or entity which can take under the will. Civ.Code, §§ 1275, 1313. When used with reference to a living man, ‘estate’ may either mean all of his property and property interests, as colloquially, ‘upon his death he will leave a large estate,’ or it may refer specifically to a particular property in land, as his ‘estate in Sonoma county.’ But, however used as to a living man no property can pass to it by descent, devise or bequest. * * * The construction contended for by appellants, namely, that the will is to be read as though it declared that the balance should go to Thomas Glass, if alive, and, if not, then to his estate, by ‘his estate’ meaning his legal heirs, or his devisees or legatees, as the case may be, is too strained to be permissible.'

The same question arose in Re Davis' Estate, Cal.App., 59 P.2d 547, 549, where a will, after making several specific legacies, concluded with: ‘All my stocks and real estate to be sold and devised to all of the estate’. One of the questions presented was whether the residuary clause called for a division among the named legatees or whether it resulted in intestacy as to the residue. The trial court ordered an equal division among the named legatees. On appeal the judgment was reversed, the appellate court saying: 59 P.2d page 550 ‘* * * 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.' And again, same page, ‘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.’ A transfer was ordered to the Supreme Court and, pursuant to a stipulation of the parties, an amendment of the findings and judgment was entered, the effect of which was that the residuary clause was held ineffective as was done in the earlier opinion of the District Court of Appeal. In re Estate of Davis, 8 Cal.2d 11, 63 P.2d 827.

We do not cite that opinion as authority since the transfer to the Supreme Court made it ineffective. But the reasoning of the opinion and the language which we have quoted from it are both logical and persuasive, while the court's citation of the Glass case in connection with the new section 27 of the Probate Code gives legalistic support to the views we have herein expressed.

Section 1275 of the Civil Code referred to in the Glass opinion has been incorporated in part in section 27 of the Probate Code with an addition coming after the Glass decision which is pertinent to the case here. The original section 1275 provided that a testamentary disposition may be made ‘to any person capable by law of taking’. The new section of the Probate Code authorizes disposition ‘to natural persons capable by law of taking’. Except to add the State as one qualified to take under a will the other provisions of section 27 are practically the same as those of the old section.

In the enactment of section 27 of the Probate Code in 1931 we must assume that the legislature had in mind the rule of the Glass case that an ‘estate is not a person or entity which can take under the will.’ This assumption is fortified by the new language of the Probate Code which added the word ‘natural’ in the clause reading ‘to natural persons capable by law of taking’. If the legislature had not accepted the Glass case as evidence of its intention in this respect it would have been a simple matter to have added ‘or his estate’ in the enumeration of those capable of taking by will. Far from doing so it made the case stronger for the rule of the Glass case by adding the word ‘natural’ to persons capable of taking.

The decree is reversed.

I dissent. In my opinion In re Estate of Glass, 164 Cal. 765, 130 P. 868 is not controlling on the facts of the case here presented. In re Estate of Glass Thomas Glass was living at the date of the execution of the will and the only problem considered by the court was whether a devise or bequest to the estate of a living person could be given testamentary effect, the words of that will being ‘to father Glass' estate.’ The court makes this perfectly clear 164 Cal. on page 767, 130 P. on page 869, where it states: ‘The language of the testatrix thus being referred to the date of her will and not to the date of her death, by the plain terms of the will Nellie Glass ateempted to leave the residue of her estate, not to Thomas Glass, but to Thomas Glass' estate. Thomas Glass' estate is not a person or entity which can take under the will. Civ.Code, §§ 1275, 1313. When used with reference to a living man (sic), ‘estate’ may either mean all of his property and property interests, as, colloquially, ‘upon his death he will leave a large estate,’ or it may refer specifically to a particular property in land, as his ‘estate in Sonoma county.’ But, however used as to a living man (sic) no property can pass to it by descent, devise, or bequest.'

In our case the devise is not ‘to Otto Speckter's estate’ but ‘to Otto Speckter or his estate’. The testator's intention is thus clear to provide for two contingencies: if Otto Speckter survives the testator the property is to go to Speckter and if Otto Speckter predeceases the testator the property is to go to Speckter's estate, that is to those persons entitled to distribution of Speckter's estate as heirs, devisees or legatees. Thus is presented the very case that the court in re Estate of Glass, supra, 164 Cal. at page 767, 130 P. at page 869, said could not be read into the words ‘to father Glass' estate’, that court saying: ‘The construction contended for by appellants, namely, that the will is to be read as though it declared that the balance should go to Thomas Glass, if alive, and, if not, then to his estate, by ‘his estate’ meaning his legal heirs, or his divisees or legatees, as the case may be, is too strained to be permissible.' By reason of the use of the alternative in the will before us—‘to Otto Speckter or his estate’—that construction in this case is not strained at all. It is the natural one.

Could any one seriously question the testator's intention? It seems too clear to me to be open to any reasonable doubt, and the testator's intention being clear from the four corners of the will it is our duty to construe the will to give effect to that intention. In re Estate of Lawrence, 17 Cal.2d 1, 108 P.2d 893. Other courts have found no difficulty in construing devises or bequests to the estates of deceased persons according to the testator's evident intent. Leary v. Liberty Trust Co., 272 Mass. 1, 171 N.E. 828, 69 A.L.R. 1239; Bottomley v. Bottomley, 134 N.J.Eq. 279, 35 A.2d 475; Rogers v. Walton, 141 Me. 91, 39 A.2d 409.

If the will is construed to effectuate the testator's intention that the property should go to the persons entitled to succeed to Otto Speckter's estate then the interpretation of sec. 27, Probate Code can play no part in the decision since those persons are ‘natural persons' and hence come within the definition of that section.

For the reasons given I believe that the decree appealed from should be affirmed.

NOURSE, Presiding Justice.

GOODELL, J., concurs.