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


Civ. 16988.

Decided: May 27, 1949

Fred N. Howser, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for State. Clyde C. Triplett, Los Angeles, for Russell Lemmon, and others. Sidney N. Bachtell and B. Dean Clanton, Los Angeles, Sidney N. Bachtell, Los Angeles, for Los Angeles Society Prevention Cruelty to Animals. Newby, Holder & Newby, Los Angeles, Chas. R. Newby, Los Angeles, for Mary Martha Home for Girls. Hooper & Miller, Los Angeles, Geo. A. Hooper, Los Angeles, for Children's Home Society of California.

Clara Rood Akeley departed this life leaving neither spouse nor kin. She had, however, executed a holographic will which, after making bequests to individuals, devised all the rest, residue and remainder of her estate as follows:

“25 per cent to the Childrens Home Society of Calif

25 per cent to the Mary Martha Home for Girls *

25 per cent to Los Angeles Society for the Prevention of Cruelty to animals *”

The executor in his final account asked for a determination of whether the three residuary legatees should each receive only 25 per cent of the residue with the remaining 25 per cent escheating to the state because testatrix had made no disposal thereof, or whether each of the designated residuary legatees is entitled to receive one third of the residuum. The state promptly filed its “Statement of Claim of Interest in the Estate” alleging that it is entitled to twenty-five per cent of the residue, less one fourth of the expense of administration. In their answer to the petition the same legatees alleged that decedent “intended that the residue of her estate should be divided equally between the three residuary legatees named” and demanded distribution of one third of the residue to each.

Without the aid of any evidence the court construed the will to mean that it was the intention of the testatrix to bequeath the entire residue of her estate to the three designated charitable organizations in equal shares and ordered distribution accordingly.

The court's finding and order are without precedential support. The intention of a testator can be derived from his will only. While a court must lean to the construction that will avoid intestacy, its inquiry must not purport to extend to the secret workings of the testator's mind. The intention sought for is not what might have been present when he penned his testament but that which is expressed in the embalmed language of the author. When the latter's purpose has been divined from his solemn words the chancellor's task is finished. His judicial cerebrations must there cease; his conjecture and speculation dehors the will are worth nothing and serve only to confuse his effort to interpret the writing of the decedent. If the will contains inconsistent clauses, still the court must from them find the meaning; if the words are simple and the phrases are definite and consistent from them and them only must the court ascertain the testator's purpose. It must not resort to “ingenious conjecture” to determine wheth- the deceased meant something not actually expressed in his will. If the language used results in intestacy and its meaning is unambiguous, it is beyond the province of the court so to construe the writing as to hold that its author intended to devise all his possessions. His right to select the recipients of his bounty must not be deemed a barrier to his right not to select them. Estate of Beldon, 11 Cal.2d 108, 112, 77 P.2d 1052; Estate of Hoytema, 180 Cal. 430, 432, 181 P. 645; Estate of Seay, 180 Cal. 304, 306, 181 P. 58; Estate of Blake, 157 Cal. 448, 459, 108 P. 287; Estate of Young, 123 Cal. 337, 344, 55 P. 1011; Estate of Maloney, 27 Cal.App.2d 332, 336, 80 P.2d 998. The right to bequeath one's possessions is derived from statute. Such right cannot be enlarged by judicial decree. Consequently, when a testator fails to make disposition of any share of his estate, such portion must be distributed to his heirs at law, Estate of Kunkler, 163 Cal. 797, 800, 127 P. 43, and if there are no heirs at law the portion not devised escheats to the state. Probate Code, sec. 231.1

Respondents contend that even though they should not be entitled to receive “all the rest, residue, and remainder of decedent's estate,” still, in the absence of heirs at law they should be awarded the remaining one fourth of the residue by virtue of the provision which follows the names of the three residuary legatees. It is as follows: “In the event the total of the bequests to the above named charitable organizations shall exceed the portion of my estate that I may legally give for charitable purposes, then all such bequests shall be proportionately reduced to the extent, that the total of such bequests shall not exceed the maximum amount that I may legally give charity, and in such event, I give, devise and bequeath to Russell Lemmon, the Executive named, all the residue of my estate, free from trust.” By reason of such provision respondents maintain that there is no factual basis for applying section 231 of the Probate Code because the testatrix disposed of all her estate and the state is therefore not aggrieved. Respondents thereby ignored the condition under which Lemmon was to receive any portion of the residue. Again, the language of the will must govern. The last quoted provision gives him a portion of the residue, only in the event that the three charitable bequests shall exceed the portion the testatrix might bequeath to charitable purposes. Since such bequests do not exceed the portion that testatrix might legally give to charity, the quoted provision did not become operative and no portion of the residue passed to executor Lemmon. It is elemental that a reviewing court is not bound by the conclusion of the trial court on questions of law. Hence, the construction necessitates the decision here derived. Estate of Pearson, 90 Cal.App.2d 436, 203 P.2d 52; Estate of Welch, 83 Cal.App.2d 391, 399, 188 P.2d 797.

No person having claimed to be entitled to share in decedent's estate under the laws of succession, the 25 per cent of the residue thereof escheated to the State and distribution should have been made accordingly. Therefore, the order is reversed with instructions to distribute the residue as follows:

25 per cent thereof to the Children's Home Society of California;

25 per cent to Mary Martha Home for Girls;

25 per cent to the Los Angeles Society for the Prevention of Cruelty to Animals;

25 per cent to the State of California as escheated property.


1.  Probate Code, section 231. “If the decedent leaves no one to take his estate or any portion thereof, under the laws of this state, the same escheats to the state as of the date of the death of the decedent. *”

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.