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


Civ. 11191.

Decided: September 30, 1936

Borton, Petrini & Conron, of Bakersfield, for appellant. Gibson, Dunn & Crutcher and Norman S. Sterry, all of Los Angeles (Robert F. Schwarz and Frederic H. Sturdy, both of Los Angeles, of counsel), for respondents.

This appeal presents for determination the interpretation to be given to a clause of the will of Sarah Louise Clark, deceased, by which she bequeathed to Webster C. Clark, nephew of her deceased husband, “the sum of $15,000 provided said Webster C. Clark shall at or prior to may decease fully pay and discharge all indebtedness owing by him to me as beneficiary under or distributee of my late husband's estate or otherwise.” The will also provided that, in event said beneficiary should “fail to fully pay and discharge said indebtedness at or prior to my decease,” he should take nothing, and the amount bequeathed to him should pass to other named beneficiaries.

The pertinent facts in the case are not in dispute. The will was dated March 5, 1934, at which time Webster C. Clark was indebted to the testatrix for money loaned to him by her deceased husband in the sum of $57,000, and for which he gave his note March 31, 1934. Certain interest payments were made upon the indebtedness, and the principal was reduced by the sum of $3,000, so that at the date of the death of Sarah Louise Clark on September 8, 1934, Webster C. Clark was still indebted to her on account of the obligation in the sum of $54,000. Upon petition for ratable distribution and ratable payment of legacies the trial court held that the bequest to Webster C. Clark was conditioned upon his discharging his indebtedness to the testatrix within her lifetime, and that, not having done so, he was entitled to nothing. He appeals from the resultant order and decree which denied to him participation in the distribution of said estate.

Appellant urges that a literal interpretation of the words “at or prior to my decease” permitted him to discharge his obligation to the testatrix either at any time prior to her death or at the moment of her death, and that, inasmuch as payment at the very moment of death would be impossible, it must have been the intention of the testatrix to allow him a reasonable time after her decease to pay his indebtedness. He pleads for a liberal construction of the testamentary terminology, citing the well–established rules that wills are to be so construed as to give effect to all provisions thereof if possible, that intestacy is to be avoided, and that a liberal construction is to be favored to effectuate the intent of the testator. It is suggested that payment of appellant's obligation to deceased at any time during the period of the administration of her estate would be in reasonable compliance with the conditions imposed by the will.

Appellant is urging a strained and labored construction of the disputed clause. Its simple and obvious meaning would appear to be that the testatrix imposed as a condition precedent to appellant's receiving his bequest that his obligation to her be discharged, paid, and at an end at the time of her death or prior thereto. The words “at or prior” are to be construed very much as the “on or before” clause in commercial instruments. If appellant's indebtedness had been paid at the time of or before the death of the testatrix, then her bequest to him would have been operative; otherwise he would receive nothing. Such interpretation is the only one that gives meaning to the condition imposed, for otherwise the bequest would automatically be set off against the indebtedness and the condition would be without any meaning whatsoever. To uphold appellant's argument, therefore, we would be obliged to assume that the testatrix inserted in her will a useless, meaningless, and unnecessary clause imposing a condition having no purpose. The condition would in effect be erased and the bequest made absolute.

It is a cardinal rule of construction that the obvious intention of the testator, as the same appears from the entire will, must govern, and that wherever possible without doing violence to the manifest intention of the instrument, each word and phrase is to be given some meaning. In re Estate of Peabody, 154 Cal. 173, 97 P. 184. Measured by this rule, the trial court was correct in its interpretation of the document before it in this case.

Furthermore, to give effect to appellant's contention the phrase “at or prior to my decease” would have to be given the enlarged meaning of “at or prior to my decease or within a reasonable time after my decease.” It is not the province of the courts to read into a will words which change or add to the plain intent of the testator. The answer to two questions determines the disputed point: Was the indebtedness paid prior to the decease of testatrix? Was the indebtedness paid at the time of the decease of testatrix? To each query the answer is “No.” The condition imposed by testatrix was not met by appellant, and therefore her conditional bequest to him lapsed.

Aside from the foregoing considerations, it appears from the record that almost one year had elapsed from the date of testatrix' death to the time of the hearing which resulted in the decree from which this appeal is taken. No payment of his indebtedness was made by appellant in that time, nor was there a valid tender of payment; nothing, in fact, further than a letter in which he offered to pay in due course of administration of the estate, provided the executors would agree that the $15,000 legacy vested in him instead of in the residuary legatees. Adopting appellant's own plea that he should be allowed a reasonable time after the death of testatrix to discharge his obligation, it is obvious that in the course of a year's time he did nothing to meet the conditions imposed in the will and with which he must necessarily comply before enjoying the fruits of testatrix' bounty.

Appellant makes the further contention that the court erred in excluding from evidence certain correspondence between him and the executors of the estate of deceased and of her husband's estate relative to the purposes and reasons for loaning the $57,000 and the uses to which it was applied. Such extrinsic evidence was wholly unnecessary to explain the intent of the testatrix, inasmuch as her intent was apparent from a reading of the document itself. It was therefore properly excluded. In re Estate of Wilson, 171 Cal. 449, 153 P. 927.

The order and decree appealed from is affirmed.

I dissent. Of the residue of her estate the testatrix gave to seven persons various sums in cash. Then follows the eighth clause as follows: “(8) To said Webster C. Clark the sum of Fifteen Thousand Dollars ($15,000), provided said Webster C. Clark shall at or prior to my decease fully pay and discharge all indebtedness owing by him to me as beneficiary under or distributee of my late husband's estate or otherwise. Should the said Webster C. Clark fail to fully pay and discharge such indebtedness at or prior to my decease, then said Webster C. Clark shall take nothing under Paragraph Fourth of this, my last will and testament, and I hereby give, devise and bequeath said sum of Fifteen Thousand Dollars ($15,000) to Mrs. Jennie Knapp, Mrs. Harriett Eckett, Mabel Elston, Esther Louise Elston, Mrs. Maude Dunne, Virginia Dunne, and Margaret Dunne, in the same proportions that the amounts I have hereinabove given and bequeathed to them respectively in clauses (1) to (7) inclusive of this paragraph Fourth bear to the aggregate of such amounts.” The interpretation of this clause must be made in the light of the rule that the intention of the testatrix must be followed and in view of section 102 of the Probate Code: “The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative.” To sustain the contention of respondents we must hold that the words “Should the said Webster C. Clark fail to fully pay and discharge such indebtedness at or prior to my decease” should be interpreted to mean: If the said Webster C. Clark shall have fully paid and discharged such indebtedness prior to my decease. The testatrix did not use such language, but provided that the debt could be paid “at or prior” to her decease. The words “at or” cannot be disregarded. The interpretation requested by respondents fails to “give to every expression some effect.” The testatrix could not have intended that the debt be paid at the instant life would be departing from her body. Payment at such a time would be utterly impossible. In my opinion the only reasonable interpretation which gives “some effect” to the words “at or” is that Mr. Clark must pay the debt within a reasonable time after the decease of the testatrix in order to receive the legacy. An argument that the same result would be reached by operation of law and that the condition adds nothing to the testamentary provisions does not justify the court in disregarding any words contained in the will or in giving the will a meaning not intended by the testatrix. It is a matter of common knowledge that makers of wills very frequently include testamentary provisions which would be made effective by operation of law if they had been omitted.

Counsel have not cited cases in which the word “at” has been construed when used in testamentary dispositions, but many cases have been recorded in which the word has been construed when used in other situations. A general statement is found in Corpus Juris, volume 5, page 1422: “It is a word of great relativity and elasticity of meaning, and is somewhat indefinite, shaping itself easily to varying contexts and circumstances, and taking its color from the circumstances and situation under which it is necessary to apply it to surrounding objects. It is not a word of precise and accurate meaning, or of clean, clear–cut definition, and it has been said that the connection furnishes the best definition.” And on page 1423: “The use of the word usually negatives the idea that precision or an exact coincidence is intended, either of place or time. As used to fix a time, it does not necessarily mean eo instanti, or ‘punctum temporis,’ or the identical time named, or even a fixed, definite moment. In short, the word expresses the relation of direction toward, presence, and nearness in either time or place, and does not demand an exact coincidence as to either.” See Rogers v. Burr, 97 Ga. 10, 25 S.E. 339; Rice v. Kansas Pacific Ry., 63 Mo. 314.

I cannot share the view that appellant's legacy has lapsed for failure to pay the indebtedness within a reasonable time. This question is primarily for the determination of the trial court, and the record does not disclose that the trial court made a definite finding on the issue. Moreover, the circumstances before the court presented, in my opinion, sufficient justification for the delay. Mr. King, one of the executors, is a lawyer. Within a month from Mrs. Clark's death appellant wrote to Mr. King concerning the provisions in dispute and stated: “I would like very much to have an interpretation of this point from you.” Under date of October 15, 1934, Mr. King wrote the appellant giving an interpretation adverse to appellant's contention. On October 19, 1934, appellant sent the following letter to Mr. King: “I acknowledge receipt of your letter of October 15th. Since its receipt I have consulted counsel regarding the construction of the will. It is the opinion of the attorney whom I have consulted that the correct construction is in accordance with my letter to you of October 6th. He advises me that his interpretation of the will is based in the main upon the following considerations: The language itself appears to be clear and definite. The privilege is by the will accorded to me to pay ‘at or prior to my decease.’ This would mean since it is impossible to pay money to a dead person, that the payments should be made in due course to the executor after the decease of the testator. The situation is not a complex one nor one difficult of expression, and it would have been, according to the advice of my attorney, a matter of the utmost simplicity were the purpose otherwise to have expressed it thus: ‘shall have, at or prior to my decease, fully paid and discharged.’ The latter language would have clearly expressed the purpose that the debt must have been paid in the lifetime of the deceased to make the legacy effective. Another consideration pointed out by my attorney is this: my indebtedness was large, was current, and was in process of gradual liquidation; the interest was always paid promptly. I was, therefore, proceeding in the matter in accordance with previously prevailing custom and in accordance with my legal position. There had been no disputes nor arguments about the indebtedness and there was nothing to lead me to suppose that the attitude of the parties toward it had experienced a change. Under these circumstances it is not reasonable to suppose that the testator intended to prepare a secret pitfall for my feet, leaving me in a position where all unknown to me valuable rights were to be lost to me if I did not do certain things that I was under neither legal nor moral compulsion to do under the circumstances. Such being the construction placed by my counsel upon the will, will you please construe this letter as a tender of payment of my indebtedness to the estate made pursuant to Section 1493 and following of the Civil Code of the State of California. I hereby offer to pay my entire indebtedness to the estate in due course of administration, conditioned, however, upon the construction of the will, and particularly the eighth subdivision of the fourth paragraph thereof to this effect:––that upon payment of my indebtedness to the estate in due course of administration I am entitled to the legacy provided by that subdivision of that paragraph.” This letter was answered by letter dated April 15, 1935, in which Mr. King expressed the belief that the legacy had failed and further stated: “Mr. Macneil has suggested that an executor is not properly interested in a dispute between claimants as to the portions of the estate to which they are respectively entitled, and after a thorough examination of the authorities I find, I freely confess to my surprise, that he is correct. It is clear to me that a possible dispute as to the validity of your contention is solely between you on the one hand and Mrs. Knapp, Mrs. Ecket, the Elstons and the Dunnes on the other hand, and is not primarily my affair. I have written Mrs. Knapp, Mrs. Eckett, the Elstons and the Dunnes, sending them copies of our correspondence on this matter and asking them what positions they will take. As soon as I have heard from them I shall write you again. We have proceeded and are proceeding with the routine of administration on the theory that your contention as to the legacy may or may not be well founded, and we do not propose at any time to take any steps which will unfairly prejudice your collection of any sum legally due you.” The petition for ratable distribution and to determine the persons entitled to the specific legacies was filed on July 20, 1935.

During the hearing before the trial court appellant offered to prove certain circumstances concerning his indebtedness. He offered to prove by the introduction of letters that he had borrowed approximately $70,000 from E. W. Clark, predeceased husband of the testatrix and uncle of appellant; that all of the loans were made with knowledge on the part of E. W. Clark that they were for use for capital investment in appellant's business to procure machinery and to enlarge his plant; that the loans were kept current and interest paid thereon; that after the death of E. W. Clark the executor of his will wrote to appellant stating that it was Mrs. Clark's idea “that the principal of the note should be gradually reduced commencing with the first of the year, if possible,” and that a new note could best be given when the estate was distributed and the title to the note passed to her. The indebtedness had been reduced to $57,000 at the time of the execution of the will, and shortly before the death of the testatrix it had been reduced to $54,000. There had been no dispute as to the manner of liquidation. Section 105 of the Probate Code provides that, “when an uncertainty arises upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made.” In my opinion the court erred in rejecting the proffered evidence.

GOULD, Justice pro tem.

I concur: CRAIL, P. J.

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Docket No: Civ. 11191.

Decided: September 30, 1936

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

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