IN RE: Estate of Maud Stella GARDNER

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

IN RE: Estate of Maud Stella GARDNER, Deceased. Edwin B. GARDNER, Petitioner and Respondent, v. Beryl Gardner LANE, Claimant and Appellant.

Civ. 40825.

Decided: October 04, 1977

Donald F. Lundgren, Palo Alto, for appellant. McCaw & Barnum, San Francisco, for respondent.

The question presented is whether the clause in the testatrix's will, disinheriting “any person not mentioned herein”, operates to disinherit testatrix's grandson. For the reasons stated herein, we have concluded that it does, and we reverse the judgment.

Section 90 of the Probate Code requires that, if a testator wishes to disinherit his lineal descendents, it appear on the face of the will that at the time of its making the testator had the person in mind and intentionally omitted to provide for him. (Estate of Torregano (1960) 54 Cal.2d 234, 249, 5 Cal.Rptr. 137, 352 P.2d 505.)

In Estate of Torregano, supra, the Supreme Court held a no contest clause, leaving $1.00 to “any person who may contest this will”, insufficient to disinherit the daughter of the testator. In so holding, however, the court carefully distinguished between no contest clauses and disinheritance clauses.

“(A no contest) clause differs radically from a clause of disinheritance. The true disinheritance clause often fails to name a specific presumptive heir, and yet may be interpreted to exclude the same because of the use of words expressly indicating an intent to disinherit. Typical examples of general disinheritance clauses are: ‘I purposely leave nothing to anyone not mentioned in this will . . . ’; ‘I intentionally leave nothing to any other person, with full knowledge . . . ’ Perhaps that most widely used (and most often interpreted to exclude presumptive heirs, even though unnamed) is some form of the clause found in Van Strien v. Jones, 46 Cal.2d 705, 299 P.2d 1, 3, wherein the testator expresses his intent to exclude or leave a nominal sum to any person, not named in the will, ‘who if I died intestate would be entitled to share in my estate.’ Such language was also in the will under scrutiny in Estate of Fernstrom, 157 Cal.App.2d 380, 321 P.2d 25, relied upon by respondent. Often a testator combines in one clause provisions intended to bar contest with general language of disinheritance; but we have found no case in which the unnamed presumptive heir was held to be excluded from the will unless that will contained either some express language of intention to omit provision for all but those named, or a complete testamentary plan from which it clearly appeared that testator would adhere to such plan even in the event that it should later appear that he had a presumptive heir who was unknown to him. . . .

“We have read and analyzed each case cited by respondent for the proposition that appellant is excluded from the Torregano estate as a matter of law, and we find that although the language of some appears to give comfort to respondent's contention, none actually resulted in judgment against the claiming pretermitted heir unless the will included: (a) a specific clause of disinheritance, (b) a general clause expressing an intention to disinherit all those not named, (c) a clause affecting all persons who might have taken in the event that testator died intestate, (d) a clause expressing some doubt regarding the identity of testator's heirs and providing for disinheritance or nominal sums to such persons who may prove to be his heirs, (e) reasons for leaving the entire estate to the named beneficiaries, which reasons exclude the intent to leave anything to other presumptive heirs, or (f) a complete testamentary plan from which the court was bound to find that testator would have left nothing to any other person even though there were presumptive heirs of whose existence he was unaware.” (pp. 252-254, 5 Cal.Rptr. pp. 148-149, 352 P.2d pp. 516-517, emphasis added.)

In the case at bar, the clause in question is a general disinheritance clause, expressly indicating an intent to disinherit. It is not a no contest clause, but rather is a clear and unambiguous declaration of the testatrix's intent to disinherit.

The evident purpose of the clause is to avoid the operation of section 90. “Any person not mentioned herein” necessarily refers to any person who would otherwise be a pretermitted heir. Such language is sufficient to indicate that the testatrix had her grandson in mind and intentionally excluded him from participation in her estate. (Estate of McClure (1963) 214 Cal.App.2d 590, 29 Cal.Rptr. 569.)

We therefore hold that respondent is not a pretermitted heir and that the probate court erred in determining respondent to be entitled to share in the estate.

The judgment is reversed.



THE COURT: [FN*] FN* Before TAYLOR, P. J., and KANE and ROUSE, JJ.

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