IN RE: BROAD'S ESTATE. (1941)

This is an appeal from a judgment interpreting and applying portions of a will executed on April 8, 1939, by William J. Broad, who died on April 11, 1939. The testator left an estate, appraised at $28,331.49, including some real estate, several promissory notes, and about $2,700 in the bank. Nearly all of his estate was mentioned in devises and bequests of specific property, most of which were to friends and to a cousin. Among other things, he gave to the appellants an interest in certain real property, “all indebtedness owed to me by them” and “all money remaining in my estate after payment of my indebtedness and the costs and expenses of administering my estate”. The appellants were also included in the residuary clause. The third paragraph of the will gave a $6,000 balance of a certain indebtedness to two charitable or benevolent societies or corporations. The ninth paragraph gave all the rest, residue and remainder of testator's estate, both real and personal, in equal shares to nine individuals, including these two appellants, and to three charitable or benevolent societies or corporations.

In this proceeding for interpretation of portions of the will, the court found and adjudged that the bequests to the charitable organizations under the third and ninth paragraphs of the will were void under the provisions of section 41 of the Probate Code, and it was ordered that the property represented by these bequests, “so failing of testamentary disposition”, be distributed to the heirs at law of the deceased. It was further found that these heirs at law were certain nephews and nieces. From the judgment entered Mr. and Mrs. Pierce have appealed.

It is first contended that under the circumstances here appearing the portions of the estate represented by the ineffectual bequests to the charitable institutions are not distributable to the heirs at law. This contention must be sustained, except as it relates to the residuary clause.

The respondent William Broad relies on that part of section 41 of the Probate Code, which reads: “All property bequeathed or devised contrary to the provisions of this section shall go to [certain heirs] if and to the extent that they would have taken said property as aforesaid but for such devises or legacies.” It is argued that the purpose of section 41 is to protect the heirs at law, that this section contains a special law of succession, and that there would be no purpose in declaring that the existence of such heirs should invalidate such a bequest if the heirs were not to profit by it. This argument overlooks the provision in the quoted part of the section that the designated heirs are to take if and to the extent that they would have taken except for the invalid provisions of the will. In other words, such heirs are to take such property when it is neither disposed of by the invalid provision of the will nor by any other provision which is valid. In the instant case the residuary clause, which is in no way questioned, disposed of all the rest, residue and remainder of the testator's estate. Section 126 of the Probate Code provides that such a residuary clause passes all the real or personal property which the testator “was entitled to devise or bequeath at the time of his death, not otherwise effectually devised or bequeathed by his will”.

Where nothing to the contrary appears in a will, the intention to include all ineffectual bequests in the residuary clause is presumed. Estate of Walker, 196 Cal. 323, 237 P. 1070; Estate of Kelleher, 205 Cal. 757, 272 P. 1060, 1062. In the latter case, the court said:

“The rule is stated in the Estate of Upham, 127 Cal. 90, 59 P. 315: ‘Where the residuary bequest is not circumscribed by clear expressions in the instrument and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue, whether by lapse, invalid disposition, or other reason’. In O'Connor v. Murphy, 147 Cal. 148, 81 P. 406, the matter was discussed in the following language: ‘It is not enough that it appears from a clause of the will, simply that the testator intended to make a particular devise of a portion of his estate which, however, for some reason, failed to be effectual; because, if that were the rule, it would apply to every lapsed or invalid bequest, and the residuary clause could never be effectual to carry it.

“ ‘On the contrary, it must appear unequivocally that it was the intention of the testator, not only to make a particular devise, but it must further appear from the terms of such devise, or from other provisions of the will, that it was the intention of the testator, that the residuary clause should not in any event carry such bequest should it become inoperative for any reason. The intention to include all ineffectual bequests in the residuary clause is presumed; the intention to exclude must appear from appropriate language evidencing that intention, or by clear implication.’ ”

In Estate of Fanning, 8 Cal.2d 229, 64 P.2d 951, the court said: “The devise and bequest of the residue of an estate passes the title of all the property of the estate ‘not otherwise effectually devised or bequeathed by his will.’ Section 126, Probate Code.”

There being a valid residuary clause covering all portions of the estate not otherwise effectually disposed of, and no contrary intent appearing in the will, it must be held that the property included in the void portions of this will is, under the code sections and the authorities, not distributable to the heirs at law of the deceased.

The appellants further contend that the property which the testator endeavored to give to charitable organizations should be ordered distributed to them alone and not to the nine persons, including them, who were named as beneficiaries in the residuary clause. They rely upon a part of the fourth paragraph of the will, reading as follows: “I also give, devise and bequeath to the said R. F. Pierce and Alberta Pierce all money remaining in my estate after payment of my indebtedness and the costs and expenses of administering my estate.” It is contended that it was the duty of the executor to collect all debts owing to the estate, including this $6,000 debt, and after paying expenses and costs of administration to pay the remaining cash to the appellants under this provision. The testator, at the time the will was made and at the time of his death, possessed an “indebtedness” a part of which he disposed of in the second clause of his will and the remainder of which he attempted to dispose of in the third clause of his will. He also had some $2,700 in the bank. Having previously made a specific reference to this indebtedness in two clauses of his will it is obvious that the testator had no intention of having the amount thereof collected and turned into money for the purpose of including it in the “money” bequest to these appellants, provided for in the fourth clause of the will. To thus interpret the clause here in question would render a number of other clauses in the will nugatory and would obviously do violence to the intention of the testator. Moreover, if the testator had intended the clause here in question to pass the property not otherwise disposed of there would have been no reason for inserting a residuary clause. Under the circumstances here appearing, it must be held that the word “money” in the quoted portion of the fourth paragraph was not intended to, and does not include the proceeds of the indebtedness mentioned in the second and third paragraphs of the will.

A question remains as to the effect of the residuary clause which gave the residue in equal shares to nine individuals and to three charitable associations. This gift to these charities was also void. That portion of the estate, amounting to one–fourth of the residue, was not disposed of by any other valid provision of the will. The testator gave three–fourths of the residue to the nine named individuals, but he did not give them the remaining one–fourth. It follows that this one–fourth of the residue goes to the heirs, under section 41 of the Probate Code.

The judgment is reversed with directions to the trial court to enter a judgment in conformance with the views herein expressed. The appellants will recover their costs on appeal.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concurred.