Reset A A Font size: Print

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


Civ. 17773.

Decided: December 20, 1950

Marshall & Farnham by O. E. Farnham, Long Beach, for appellants. No attorney for respondent.

This appeal is from that portion of a decree of distribution reading as follows, ‘that in pursuance of and according to the provisions of the Last Will and Testament of said decedent and by operation of law, the property hereinafter described, and all other property belonging to said Estate, whether described herein or not, be distributed to Argirios T. Collias, also known as Argirios Collias.’

The last will and testament of decedent named Argirios Collias executor of the estate and in addition contained this provision:

‘All the rest and residue of my estate, of every kind and description, and wherever situated, I give, devise and bequeath unto my nephew Argirios Collias a resident of Long Beach, California at the time this instrument is signed. It is my desire and wish that my nephew Argirios Collias will give half of my estate to my nearest relative heir in Greece instructing him or her to distribute said half of my estate in equal shares to all my close relatives in Greece * * *.’

Question: Did the court err in distributing all of the residue of decedent's estate to Argirios T. Collias?

This question must be answered in the affirmative. A wish or request of the testator for the distribution of his estate directed to his executor is a command and should be complied with by the probate court. (In re Estate of Lawrence, 17 Cal.2d 1, 7, 108 P.2d 893; In re Estate of Miles, 72 Cal.App.2d 336, 343, 164 P.2d 546.)

In the instant case the facts fall squarely within the foregoing rule. Argirios Collias was the executor of the estate and the will expressed a wish that half of his estate be divided equally among his close relatives in Greece by the executor.

Therefore the decree of distribution is amended by striking out the portion thereof set forth above and substituting in lieu therefor, ‘that in pursuance of and in accordance with the last will and testament of said decedent and by operation of law, the property hereinafter described, and all other property belonging to said estate, whether described herein or not be distributed one half to Argirios T. Collias, also known as Argirios Collias, and one half of said estate to Argirios Collias in trust for the use and benefit of decedent's closest relatives in Greece.’

As thus modified the decree is affirmed.

I concur.

Keeping in mind the paramount rule that a will is to be construed according to the intention of the testator as expressed therein the mandatory character of the bequest of one half of the testator's estate to his ‘nearest relative heir’ in Greece readily appears. When such words as wish and desire are used in direct reference to the estate they are imperative and not precatory. When a wish is expressed for the disposal of the estate to him who is named as executor it is to be construed as mandatory. ‘All expressions indicative of his wish or will are commands.’ In re Lawrence's Estate, 17 Cal.2d 1, 7, 108 P.2d 893, 896; In re Estate of Tooley, 170 Cal. 164, 166, 149 P. 574; In re Estate of Marti, 132 Cal. 666, 671, 61 P. 964, 64 P. 1071; In re Miles Estate 72 Cal.App.2d 336, 164 P.2d 546.

Some of the cited authorities and others did not result favorably to a holding that a trust had been intended. Results differ according to the intent which must be divined from the language used, the punctuation employed and the situation of the testator at the time of his authorship. To illustrate, in the Marti will, supra, a definite gift of his estate to his wife was made by the testator; in paragraph 2 he appoints her executrix with power of disposition. He came to a complete stop. In a separate paragraph he expressed his ‘desire’ that one half of the property bequeathed to the wife ‘shall be devised by her to my relatives.’ It was therefore not imperative that the widow devise the property to her husband's relatives. A similar condition obtained in the Tooley will, supra, with like result. In re Estate of Miles, 72 Cal.App.2d 336, 337, 164 P.2d 546, 548 the testator left all his estate to wife Flora, ‘She to act as executor without bond.’ Having thereby disposed of his estate the testator proceeded to express the wish that ‘in a reasonabe time she give to Adele my daughter $500.00 and to Kenneth my son $100.00.’ Having bequeathed the estate to his wife he merely indulged in wishful thinking on behalf of his children. Such a wish was precatory and without legal effect.

In the will here involved the aged Greek having nominated his nephew Argirios as executor he bequeathed the entire residue of his estate to the same nephew and proceeded to wish that Argirios ‘will give half of my estate to my nearest relative heir in Greece instructing him or her’ etc. The testator's desire to share his possessions with all his close relatives in Greece indicates not only that he holds in fond remembrance those amongst whom he spent his early years in the homeland but also that his love is for them no less than for Argirios who was with him at the last. His desire that the nephew ‘will give’ denotes a dispositive attitude. He places the burden of transfer on the nephew because of some fancied taxes or possible losses that might attend a wide distribution of his estate in Probate. If he had contemplated that Argirios would have possession of the estate for an indefinite period, he would not have wished him to ‘give half of my estate.’ He must have known that a transfer of half of his estate by the nephew would not likely have been possible if Argirios should keep the entire residue for an indefinite period. After the lapse of a reasonable time it would have been the estate of Argirios or it would have been so wasted that one half of testator's residue could not be found. The only way he could make a gift of one half of the residue was to do it forthwith or at least to hold it intact in trust for the close relative. A reasonable construction of the will should lead to no conclusion other than that the testator intended to impose an imperative obligation upon his executor and that he left no instruction whereby the nephew either as personal trustee or as executor may exercise a discretion in delivering half of the estate to the relative in Greece.

I dissent.

This court is bound by the decisions of the Supreme Court. It is without power to overrule them, and that is just what the majority has essayed to do by their decision in this case. Mr. Justice McComb, not attempting the impossible has not endeavored to distinguish contrary opinions, and Mr. Presiding Justice Moore has tried in vain to point a difference between the effect of the will under consideration in this case and those in the decisions hereinafter discussed.

The majority decision, if it is given any future notice at all, makes for confusion, doubt and uncertainty in the law where clarity and intelligence should prevail.

It is the rule that the intention of a testator must be given effect if it is possible to ascertain such intention from the language of the will. Nevertheless, the books are full of cases in which the intention may be read between the lines but because the lines themselves have ineptly or inaccurately articulated the testator's desire the will has failed to accomplish the intended devolution of the estate.

The manner in which the testator in the instant proceeding chose to express his ‘desire and wish’ has the same effect and accomplishes the same result as the wills in Re Estate of Marti, 132 Cal. 666, 61 P. 964, 64 P. 1071, and In re Estate of Miles, 72 Cal.App.2d 336, 164 P.2d 546, both discussed in the concurring opinion of Mr. Presiding Justice Moore. A comparison of the wills in those cases with that in the instant case will readily demonstrate that the Presiding Justice's endeavor to find a differentiating feature has been futile.

In Re Estate of Marti the decedent bequeathed all his property to his wife. He designated her as executrix. He ‘desired’ that one half the property should be bequeathed by his wife ‘to my relatives.’ In Re Estate of Miles the testator likewise left his entire estate to his wife. He nominated her as executrix. He said ‘It is my wish’ that she give certain sums of money to his children. In each will the testator ‘came to a complete stop,’ to use the language of the Presiding Justice's concurring opinion, after stating his bequest and another ‘complete stop’ after naming the executrix. Following the second stop he expressed his desire concerning the disposition to be made of a part of the estate by the devisee after she had received her bequest. In the instant case the testator devised all his property to his nephew. ‘He came to a complete stop.’ He then expressed his ‘desire and wish’ that his nephew give half the estate to his ‘nearest relative heir in Greece.’ Here, as in the Marti and Miles cases, title to the property passed to and became vested in the devisee. It was the latter's property to do with as she or he pleased and was beyond the control of the dead hand of the testator.

In both the Marti and Miles cases it is said that a request, desire or wish for the disposition of the estate addressed to the executor is a command. In neither of those cases nor in the instant case was the desire or wish directed to the executor as such, but to the devisee who in all three cases was also the executor. In the Marti and Miles cases it was held that the wish thus expressed was precatory and that the persons whom the testator ‘desired’ eventually to receive a part of his estate were not entitled to enforce fulfillment of the wish expressed in the will.

In Re Estate of Tooley, 170 Cal. 164, 149 P. 574, 575, the testator left all her property to her daughter and provided that if the latter died leaving neither husband nor children the testator desired that any property that should be left be divided equally among her brothers and sisters. An executor was not appointed. The court sanctioned the Marti case saying ‘there is here no trust’ and that in the sense in which the words were used in that case the second clause of the will was addressed to the executor. The court reaffirmed the Marti case in its declaration that a desire if directed to the estate, to the executor or to the law is dispositive and if to the devisee is precatory. The court held that the second paragraph of the will was not directed to the devisee at all but was a clear statement that upon her death the property was to go to the testator's brothers and sisters. In the instant case the entire estate is bequeathed outright and unconditionally to the testator's nephew. Then said the testator ‘It is my wish and desire that my nephew will give half of my Estate’ etc. This wish is directed to the devisee as such and not in any sense to the executor, to the estate or to the law.

If the position of the various sentences and clauses of the document is important, as the Presiding Justice seems to indicate in his opinion, although to me it does not seem so, it should be pointed out that in the Marti case the bequest and the appointment of the executrix are in one paragraph and the testator's ‘desire’ is an another. In the Miles case the bequest, appointment of executrix and ‘wish’ are all in one paragraph. In the instant case the bequest and the ‘desire and wish’ are in a paragraph headed ‘Item II’ while the nomination of the executor is in the following separate paragraph designated as ‘Item III.’ The bequest to the nephew passed the entire estate to him and the request for disposition of one half of it was addressed to him as devisee and not to the executor. The instant case is even stronger against the theory of the majority of this court than the cases above cited.

The fact that the nephew is both devisee and executor brings the case directly within the rulings of the Marti and Miles cases, since in each of them the wife was both sole devisee and executrix.

The order distributing the estate to Argirios Collias should be affirmed.

McCOMB, Justice.