IN RE: BELDON'S ESTATE.† (1937)

This appeal, which has been taken from a specified portion of a decree of final distribution of an estate, has to do with the construction of certain language contained in a holographic will.

The will in its entirety is as follows:

“San Diego Calif. June–8–1934

“I D W Beldon David William Beldon in sound mind & Good Health do Declare this to Be my last will & Testamenth all previous wills are hereby Revoked to my sister Rose now Mrs. H. W. Deparcq of Staples Minnesota I will & Bequeath $30000 thirty thousand Dollars in event of her death Before mine this Bequest goes to her crippled son William––to the Masonic Lodge Arizona No. 2 Phoenix Ariz of which I am a member $1000 one thousand Dollars for their charity fund & to the Elks Lodge No. 335 B. P. O. E. Phoenix Arizona of which I am also a member 500.00 500 dollars for their charity fund. My sister Rose is hereby appointed administratix & executrix without Bonds of this will, to the legal Descendants of Roberts (Pat) Nellies 3 children Rosemary & Will & Frances & His 2 Grandchildren 15 percent of the balance of my estate and 10 percent to Mikes son, after all my just Debt are paid anyones who tries to interfere with the purpose & intent of this will shall Be cut off with an allowance of not over $1.00 inheretance under this will.

“D. W. Beldon

“David William Beldon.”

That portion of the will which is material to the present proceedings consists of the following language: “to the legal descendants of Roberts (Pat) Nellies 3 children Rosemary & Will & Frances & His 2 Grandchildren 15 percent of the balance of my estate and 10 percent to Mikes son.”

During the trial, evidence as to which there is no dispute was produced which disclosed the following facts: The testator was unmarried and left surviving him no issue. His true name was David William O'Brien, but, during the latter years of his life, he had assumed the name of Beldon and was known as David William Beldon. His death occurred on December 5, 1934. At this time, his heirs at law consisted of one sister, Rose DeParcq, two children and two grandchildren of a brother, Pat, who had died in 1908, three children of his sister Nellie, who had died in 1911, and the son of his brother, Michael, who had died in 1916.

There is here no dispute as to the identity of the persons named in the above–quoted provision of the will. They are the two surviving sons of Patrick O'Brien and his two grandchildren, the three surviving children of the testator's deceased sister, Nellie, and the son of his deceased brother, Michael.

The trial court construed the last–quoted language of the will to mean that each nephew and niece of the testator with the exception of William Loftus O'Brien, the son of Michael O'Brien, should receive 15 per cent. of the residue of the estate, that Patrick's two grandchildren should each receive 7 1/2 per cent. of the residue and William Loftus O'Brien, who was particularly designated as “Mikes son” should receive 10 per cent. of the residue. The decree of final distribution was drawn in conformity with this construction, and, from that portion of the decree which allots the residue of the estate in the proportions indicated, the testator's sister, Mrs. Rose DeParcq, and his nephew, William Loftus O'Brien, have appealed.

It is apparent that the trial court, in construing the will as it did, was constrained so to do in order to avoid a conclusion of partial intestacy. Section 102 of the Probate Code and numerous authorities emphasize the desirability of so interpreting wills as to prevent intestacy either total or partial. The principle may be regarded as settled therefore that, when a patent ambiguity appears on the face of a will, the instrument is to be construed, when reasonably possible, so that intestacy will be avoided. Hoytema's Estate, 180 Cal. 430, 181 P. 645. However, in order that this familiar and salutary rule of construction may be applied, it is manifest that there must be need of interpretation. If the language of the instrument is clear and unambiguous, the necessity of judicial construction does not arise. Estate of Johnson, 107 Cal.App. 236, 290 P. 314.

In the provision under consideration the expression “15 per cent of the balance of my estate” presents no uncertainty or ambiguity. The quoted language is plain and definite. It may be that the testator intended that the seven persons, whom he designated immediately preceding the statement “15 per cent,” should take 90 per cent. of the residue. He did not, however, give expression to such an intention, and it is a cardinal rule of construction that, where no ambiguity in phraseology exists, the intention of the testator is to be discovered in the express language which he used. Ryan's Estate, 191 Cal. 307, 216 P. 366. As was said in Estate of Ogden, 78 Cal.App. 412, at page 414, 248 P. 680, 681, “the question for the court to determine is not what she intended to declare in her will, but what she intended by what she did declare therein.” Employment by a testator of language that is clear and certain affords no justification for wresting an unnatural meaning therefrom to save a will from condemnation, however beneficial the testator's unexpressed intention may have been. Doane's Estate, 190 Cal. 412, 213 P. 53. Indulgence in speculation and conjecture as to what a testator's intention was affords no proper basis for a decree of distribution [Estate of Zilke, 115 Cal.App. 63, 1 P.(2d) 475], and a court is not permitted to adopt a construction founded on conjecture or to supply an omission by rewriting a will in order to avoid a conclusion of partial intestacy [Estate of Hisey, 106 Cal.App. 678, 289 P. 889].

We are therefore impelled to the conclusion that the trial court incorrectly construed the hereinabove quoted language of the will. Whatever intention the testator may have had with respect to the disposition of the residue of his estate, the plain meaning of the language which he employed is that 15 per cent. of such residue shall be distributed to the seven persons whom he designated immediately preceding the words “15 per cent of the balance of my estate,” and 10 per cent. of such residue to the person designated as “Mikes son.”

The portion of the decree from which the appeal has been taken is reversed.

JENNINGS, Justice.

We concur: BARNARD, P. J.; MARKS, J.