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

IN RE: the ESTATE of Ernest J. TORREGANO, Deceased. Gladys Torregano STEVENS, Petitioner and Appellant, v. Alfred TORREGANO, Respondent.*

No. 18627.

Decided: November 06, 1959

Bergen Van Brunt, San Francisco, for appellant. Wallace, Garrison, Norton & Ray, San Francisco, for respondent.

This is an appeal from a judgment decreeing that appellant was not a pretermitted heir of Ernest J. Torregano, deceased, and as a claimant is entitled under the terms of the last will of said decedent to the sum of $1 and to no other portion of said estate.

Ernest J. Torregano, a San Francisco attorney, died testated on January 18, 1954. His will was duly admitted to probate. The will contains three paragraphs which are here pertinent. They are the second and thirteenth which will be hereinafter set out and discussed, and the fourteenth which disposes of the residue of the estate ‘to my dearly beloved brother, Alfred Torregano, and in the event that he predeceases me, I give, devise and bequeath all the rest and residue of my estate to his wife, my dearly beloved sister-in-law, Margaret Torregano, and to my nieces, [sic], Jacqueline Semeit, share and share alike, with right of survivorship.’ The Bank of America was appointed executor of this will.

On January 8, 1957, Gladys Torregano Stevens filed a petition seeking a determination that she is the daughter and pretermitted heir of Ernest Torregano. The substance of her petition is that she is the daughter of the testator, that she has received nothing by way of advancement, that the will has made no provision for her, that she had been unintentionally omitted therefrom, and that, consequently, she is a pretermitted heir under sections 90 and 91 of the Probate Code.

On February 1, 1957, Alfred Torregano, as the real party in interest, filed a statement in opposition to the petition in which he alleged he was the brother of Ernest J. Torregano, that paragraph fourteenth of the will devised the rest and residue of the estate to him, and he set out paragraph thirteenth in haec verba.

On April 18, 1957, Alfred Torregano filed a ‘Notice of Motions for Summary Judgment and Dismissal.’ The motion for summary judgment was made on the ground that paragraph thirteenth disinherited petitioner; the motion for dismissal was on the grounds (1) that the petition does not state facts sufficient for a decree determining that Gladys Torregano Stevens is a pretermitted heir of Ernest J. Torregano, and (2) that the petition is uncertain, unintelligible, indefinite, and ambiguous for specific reasons set forth.

On May 7, 1957, petitioner filed an affidavit in opposition to the motion. On May 8, 1957, the court ordered the motions submitted. On May 13, 1957, the court denied both motions.

On May 15, 1957, the case proceeded to trial before a jury. Alfred Torregano made a motion to try the legal issue separately. He also made a motion for judgment on the pleadings on the ground that the pleadings show petitioner is not a pretermitted heir.

The court ordered both motions submitted. However, the minute order in the settled statement shows only the the court ordered the motion to dismiss submitted.

At the trial, which lasted several days, evidence was introduced tending to show that appellant was in fact the daughter of the testator. However, a consideration of this evidence is not necessary to a decision of the issues here presented. It must be assumed for the purpose of this appeal that appellant is the lawful daughter of decedent. After both sides had rested, but before argument, the trial court granted the motion to dismiss and dismissed the jury, ruling as a matter of law that petitioner is not the pretermitted heir of Ernest J. Torregano and was entitled to the sum of $1 only. Its decree was thereupon entered from which judgment this appeal is taken.

The principal question involved on this appeal is whether or not the trial court erred in ruling that, as a matter of law, appellant was not a pretermitted heir of decedent.

The pertinent provisions of the will are the second and thirteenth paragraphs. The two paragraphs read as follows: Second: I declare that I am a widower and that I have no children, issue of my marriage; that my deceased wife's name was Peral C. Torregano; that my entire estate is separate property.' (Emphasis added.)

‘Thirteenth: I give, devise and bequeath to any person or persons who may contest this may Last Will and Testament, or assert any claim to share my estate by virtue of relationship or otherwise the sum of One Dollar ($1.00) each in settlement of their said claim or claims.’ (Emphasis added.)

Section 20 of the Probate Code provides that ‘[e]very person of sound mind, over the age of 18 years, may dispose of his or her separate property, real and personal, by will.’ The clear meaning of the section is that a testator, except where otherwise limited by law, may dispose of his property as he pleases, and it is settled that a testator may exclude his own children from sharing his estate after his death. However, there is a qualification of this rule found in section 90 of the Probate Code. Said section reads as follows: ‘When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator's property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intereste.’

‘The statute is not a limitation upon the power of testamentary disposition; nor was it enacted with a view to compelling the parent to provide for decendants. The object or purpose of the law is solely to protect the child against forgetful omission or oversight; and where it appears from the will that the claims of pretermitted children were considered by the testator, the statute secures no right to the children, although they may be in fact disinherited. * * *’ (26 Cal.Jur. 919.)

Respondent contends that the second paragraph must be read together with the thirteenth paragraph to determine the testator's intent and that when this is done it becomes clear that the testator intended to disinherit the appellant.

Appellant contends on the other hand that if the two above mentioned paragraphs of the will are read together it becomes equally clear that the testator did not intend to disinherit her.

Numerous cases have been cited by both respondent and appellant in support of their respective contentions, but with one exception, none of the wills in the cited cases contain language similar to that appearing in the Torregano will. For this reason all of the cited cases with the one exception can be distinguished from the instant case.

The case of Estate of Trickett, 197 Cal. 20, 22, 239 P. 406, 407, is the one case, cited by respondent, wherein the will involved contained language somewhat similar to that contained in the Torregano will. In that case the decedent was survived by his widow; his four children; and three granchildren, issue of two predeceased daughters. The will purported to devise and bequeath a life estate to testator's widow in certain outstanding obligations due to the testator with remainder over to his four children. These bequests were supplemented by a general residuary clause which read as follows: ‘[A]nd all other property I may have & hold at that time [the time of his death] is to be divided amongst the four children mentioned if living at that time & if any of them should dye [sic] then to be divided between the rest living & not their heirs or any other relatives or friends of mine.’ The court therein stated at page 25 of 197 Cal., at page 408 of 239 P.: ‘The clause excluding from participation in the testator's estate ‘any other relatives,’ considered and construed in the light of the meaning ordinarily and in law attributed to the words employed therein, is especially significant, for, coupled with the preceding clauses of the will, it indicates the testator's intention to exclude from his bounty all persons embraced within its terms. The testator presumably knew the law, and therefore must be deemed to have used the word ‘relatives' in its legal sense. * * * And, in law, ‘the word ‘relatives' or ‘relations,’ when used in a devise or bequest, should be construed, unless a contrary intention appears, as meaning those next of kin who, in cases of intestacy, would take under the statutes of distribution. * * *' [Citing authorities.] Marked and measured by the meaning of the word ‘relatives,’ as employed in testamentary dispositions, the conclusion is inescapable that the testator in the instant case must have had in mind his blood relations, among whom, necessarily, were his grandchildren, the appellants herein, and consequently must have intended to exclude them from participation in his estate. * * *

‘The general scheme of the will and the intent of the testator, as manifested by the language of the will, compel the conclusion that the testator failed to provide for appellants not because he was obligavious of their existence, but rather, because he did not desire them to share in his estate.’ (Emphasis added.)

Further in Estate of Trickett, supra 197 Cal. 20, 22–23, 239 P. 406, 407 it is said that ‘The intention of the testator to omit such children must be determined from the terms of the will itself, and parol evidence may not be resorted to for the purpose of showing the intention of the testator. [Citations.] We are limited, therefore, to the terms of the will under consideration for the determination of the question of whether or not decedent intentionally omitted appellants, his heirs at law, from his will. It must appear upon the face of the will, not only that the omission was intentional, but ‘the words of the will must show that the testator has the persons omitted in his mind, and having them so in his mind, has omitted them from the provisions of the will.’' [Citations.]

In Van Strien v. Jones, 46 Cal.2d 705, 707, 299 P.2d 1, 2, the court stated: ‘It is well settled that where in a will a testator's child is intentionally omitted or given $1.00 or any other sum, section 90 of the Probate Code is satisfied although the child is not mentioned by name. [Citations.] The use of such terms as ‘relatives' and ‘children’ have been held sufficient to designate heirs who might otherwise be pretermitted, [citing Estate of Trickett and other authorities], but such generalities as ‘anyone who may contest this will’ and ‘any other person’ do not include heirs otherwise pretermitted, In re Estate of Price, 56 Cal.App.2d 335, 132 P.2d 485; In re Estate of Cochran, 116 Cal.App.2d 98, 253 P.2d 41.'

‘Unless the statute expressly so requires, it is not essential that a child or descendant of the testator be specifically identified by the will in order to be excluded from participation as an heir. The use by the testator of a word which describes a class of persons, such as ‘children’ or ‘relatives,’ is generally considered a sufficient identification of any member of the class to preclude the application of statutes protecting pretermitted children.' (57 Am.Jur. 404.)

In Estate of Trickett, supra, 197 Cal. 20, 22, 239 P. 406, 407, the testator had his relatives other than those provided for in his will in mind. He said in his will ‘or any other relatives or friends of mine.’ By the use of these words he impliedly, at least, acknowledged that he had relatives other than those provided for in his will and that he had such other relatives in mind.

In the instant case the testator does not refer to or mention his relative other than those provided for in his will. He refers in his will to any person or persons who assert any claim to share his estate by virtue of relationship or otherwise. This does not indicate that the testator had any relatives generally or appellant specifically in mind when he made his will. By the use of these words he does not acknowledge expressly or impliedly that he had relatives other than those provided for in his will or that he had such relatives in mind.

The second paragraph of the will now under consideration also indicates that the testator did not have appellant in mind. He declares in his will that he is a widower and that he has no children issue of his marriage. He does not state that he never had or does not have any children. He specifically limits the question of not having children to his marriage with his predeceased wife, Pearl C. Torregano. The will on its face neither negates nor affirms the existence of other children of the testator.

It should also be noted that the will in the instant case does not contain a declaration that the testator had intentionally omitted to provide for his heirs other than those specifically mentioned.

From the contents of the will itself it is just as reasonable to conclude that the testator did not have appellant in mind and that he did not intentially omit to provide therein for her as it is to conclude that he did have her in mind and that he did intentionally omit to provide therein for her.

Whether the testator actually had appellant in mind and actually intended to disinherit her are matters of speculation and conjecture in which the court may not indulge.

“Only through speculation and conjecture may the construction contended for by appellants be confirmed. And this cannot be countenanced in view of the cardinal rule to the effect that in the interpretation of wills it is not the probable intent which may have existed in the mind of the testatrix which prevails, but only that which is expressed in the language of the will. * * *” In re Estate of Hoytema, 180 Cal. 430, 433, 181 P. 645, 646.

In Re Estate of Hassell, 168 Cal. 287, 288, 142 P. 838, 839, the court said: ‘It is, of course, well established, that before what are considered to be the ‘natural rights' of children to share in the inheritance of their immediate ancestors shall be taken away, the intent that they shall not so share must appear upon the face of the will strongly and convincingly. [Citing authorities.] If the intent is not thus satisfactorily established, the law will reach the humane conclusion that the testator inadvertently failed to make provision for his children or children of deceased children.’ (Emphasis added.)

In Estate of Carroll, 138 Cal.App.2d 363, 366, 291 P.2d 976, 978, the court stated the rule as follows: ‘The intent to disinherit must appear on the face of the will by words indicating such ‘intent directly, or by implication equally as strong.’ In re Stevens, 83 Cal. 322, 329, 23 P. 379, 381. The rule is well stated in 28 Ruling Case Law, § 190, page 229: ‘The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly, either by express words or by necessary implication. This rule of construction, however, is one which applies only in doubtful cases, for the will of the testator, if expressed in clear and unambiguous language, must prevail, even though it disinherits the heirs. A necessary implication is one which results from so strong a probability of intention that an intention contrary to that imputed to the testator cannot be supposed.’'

Without engaging in speculation and conjecture, can it be said that the instant will on its face shows strongly and convincingly either by words of implication equally strong that the testator had appellant in mind, and having her in mind, omitted to provide for her? The answer to this question must be in the affirmative in order to sustain the judgment of the learned trial court. We feel, however, that the question requires a negative answer and that the judgment of the trial court should be reversed. In reaching this conclusion we are not unmindful of the well written opinion of the learned trial judge and of the decisions which have placed rather strict limitations on the operation of Probate Code, section 90, in favor of alleged pretermitted heirs. However, we have been unable to find any case which would warrant extending the limitations on the operation of said section 90 so as to defeat the claim of appellant herein as an alleged pretermitted heir.

Appellant suggests that if the judgment of the trial court is reversed that this court direct the court below to make a finding in favor of appellant that she is the lawful issue of Ernest J. Torregano, deceased. This we have no power to do. Whether or not appellant is the lawful issue of the decedent is a question of fact to be first determined in the trial court.

The judgment is reversed.

FOLEY, Justice pro tem.

BRAY, P. J., and TOBRINER, J., concur.