229 P. 898 | Cal. Ct. App. | 1924
Charles J. Newman died testate, leaving surviving as his only heirs at law a widow, a brother, five *422 sisters, and a niece. The niece was not mentioned in the will. A stepdaughter was named among the legatees. The Bank of Italy was named as trustee, vested with the usual powers.
An appeal from the decree of distribution in the estate of said decedent brings the will before us for construction. The main question is concerned with the interpretation of a trust created by the will. The provisions in dispute are as follows:
"(B) The said Trustee shall pay all the net income from said trust estate in the following manner: one-half (1/2) of said income shall be paid by my said Trustee to my wife, Ella Newman, during her lifetime, and upon the death of my said wife, Ella Newman, one-half (1/2) of said income shall be paid by my said Trustee to Ethel Taylor, of Alameda, California, daughter of my said wife; and the other one-half (1/2) of said income shall be paid by my said Trustee to my brother, Layo Newman, of the City and County of San Francisco, State of California, and to my sisters, Hattie Vogal, of the City and County of San Francisco; State of California; Julia Barrett, of Detroit, Michigan; Bertie Finn, of Colorado City, Colorado; Mamie Cohen, of Bismar, Michigan; and Fannie Merritt, whose residence is at the present time unknown or to the survivor or survivors of them.
"This trust shall terminate upon the death of the survivor of the persons hereinabove named in Article 'B,' and upon said termination, the said Trustee shall convey, deliver, pay and transfer to my heirs at law, wherever and whoever they may be, according to the laws of succession of the State of California, all of said trust estate."
Respondent agrees with the contention of appellants that the will provides a trust for the disposition of the income of the estate during the lifetime of the beneficiaries named therein, and that upon their death the testator would not particularly care who received his estate, so he directed that the trust should then terminate and the remainder of his property should go to the persons who were his heirs according to the laws of succession of the state of California. None of the parties here concerned desire to strike down the trust. *423
A reading of the quoted paragraph shows that the trust provides for the distribution of income during the lives of certain persons. At the death of the last survivor the trust is to terminate, and the "trustee shall convey, deliver, pay and transfer to my heirs at law, wherever and whoever they may be, according to the laws of succession of the State of California, all of my said trust estate." Appellants contend that the "heirs at law" so described are the persons who qualify as such under section 1386 of the Civil Code, and that this view is reinforced by the words which follow: "according to the laws of succession of the State of California."
Respondent contends that by the words "heirs at law,wherever and whoever they may be, according to the laws of succession of the State of California," the testator meant to describe and refer to the persons who would be his heirs at law at the time of the death of the last survivor of the beneficiaries of the income of the trust set forth in the will. This view of respondent was sustained by the trial court.
The findings of the trial court show that the deceased executed said will about one month prior to his death. He was fifty-one years of age, robust and strong in mind and body, and in excellent health. He died as a result of severe bodily injuries sustained by him in a sudden accident when struck by a street-car. He was married, but without children. His wife had a daughter by a former marriage, Ethel Taylor. His next of kin consisted of one brother, five sisters, and the daughter of a predeceased brother, the latter not named in the will. Four of the sisters had children.
Respondent, for support of its contention, relies in large measure upon the Estate of Wilson,
[2] It is a general rule of testamentary construction, so universally recognized as to render unnecessary a full citation of the cases which support it, that, in the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in the light of the surrounding circumstances, the class described as testator's heirs, or such persons as would take his estate by the rules of law if he had died intestate, to whom a remainder is given by will, is to be ascertained at the death of the testator. (33 L. R. A. (N. S.), p. 2, note.)
Mr. Justice Holmes says, in Whall v. Converse,
A reference to the statute to point out the persons who are to take tends to show that those who are to take are those living at the death of the person whose estate is to be distributed. (33 L. R. A. (N. S.), note, page 115, and cases cited.)
The law favors the vesting of interests, and every interest will be presumed to be vested unless a contrary intention *425
clearly is manifest. (Williams v. Williams,
Another reason assigned is the bias of the courts in favor of heirs or next of kin, as against third persons.
To take a case out of the general rule there must be some special circumstances tending to show that the testator did not intend that the next of kin who were to take should be looked for at his death, but at some other period.
Respondent trustee bases its contention for an artificial interpretation of the words "heirs at law" upon the use of the expression "wherever and whoever they may be" in association therewith. In this connection it should also be borne in mind that the additional words "according to the laws of succession of the State of California," immediately follow and complete the phrase. It is undisputed that the will was drawn by an attorney at law. It would therefore seem that the language of sections 1324, 1327, and 1334 of the Civil Code should have an important bearing upon the matter of construction.[3] The word "heirs" is a technical term, and in its "technical sense" one's "heirs" means the persons who would be entitled to succeed at his death to his estate in case of intestacy, by virtue of our statute relative to succession. (Estate of Watts,
[4] We cannot see that special significance should attach to the phrase "wherever and whoever they may be." Charles Newman was in the prime of a vigorous manhood when he made his will, and was not expecting an early and sudden passing. His was not a deathbed will. The phrase used was a rational one such as might be used by a person who had before him the reasonable expectancy of life that testator had when he made his will. The language of the will, it seems to us, indicates that testator created a trust of his estate for the period of certain lives in being; that he wished to keep the corpus of the property intact, and insure the payment of the income to the beneficiaries (naturally the objects of his bounty) during their lives; and that while he may have wished to postpone the distribution of the corpus of his estate, "beyond that," as respondent concedes, *426 he was not really concerned and "did not care who received the remainder except that he wanted his legal heirs to receive the same."
We have heretofore mentioned that respondent strongly relies upon the Estate of Wilson, supra, for support of its contention. Ellen Wilson, testator, was a widow. Her sole heir was her son, Thaddeus McConnell. The will gave Thaddeus all the personal estate. The real property was devised to her son for life, and at his death to his then living children. If he should leave no issue, then the property was to be distributed at Thaddeus' death "among my heirs as provided by the laws of the state of California, the same as if I had died intestate." The will further provided that if Thaddeus should die before the testatrix, leaving issue, the estate should go to such issue; if Thaddeus should predecease his mother and leave no issue, then the estate was to go "to my heirs, the whole to be distributed among them according to California law of succession in cases of intestacy." The first contingency came to pass. Thaddeus servived Mrs. Wilson, but died without issue. Thereafter the estate became ready for distribution and the question arose as to the interpretation of the words, "among my heirs as provided by the laws of the state of California, the same as if I had died intestate." The supreme court declares the rules of construction we have hereinbefore repeated, and then says: "To our minds it seems perfectly clear from the will, in the light of those circumstances we are entitled to consider, that the testatrix could not have intended her son to constitute or be included within the 'my heirs' 'among whom' the real property was to be distributed upon the death of the son without issue surviving. It is true that it has often been held that there is no legal inconsistency in an heir who has been made a life tenant by the will being included among the 'heirs' to whom the remainder is given. If there was nothing in the will here involved to show that others than the son were intended by the designation 'my heirs,' it might well be claimed that the courts must accept the term in its technical meaning as including those only who, at the moment of the death of the testatrix, constituted her heirs at law, viz., her son. (See Estate of Watts, supra.) But the very language upon which respondent must *427 rely, viz.: 'then upon his (her son's) death, all such real property shall be distributed among my heirs as provided by the laws of the state of California, the same as if I had died intestate,' is opposed to the theory of any such intention. It is self-evident that while the son, who was in the strict technical sense the sole heir apparent of this widow of sixty years of age, was an heir, could not be 'heirs'; nor could the real property be distributed 'among' him, the term 'distributed among' necessarily referring 'to a gift to more than two' heirs." For these and other reasons the supreme court concluded that the case is one where the context clearly indicates (Civ. Code, sec. 1327) that the word "heirs" was not used in the strict technical sense. But there is no such language contained in the will of Charles Newman. The language of the Wilson will was such that it clearly indicated to the learned author of the opinion in that case that there was something in the testamentary document to show that others than the son were intended by the designation "my heirs," otherwise "the courts must accept the term in its technical meaning as including only those who, at the moment of the death of the testatrix, constituted her heirs at law."
We are urged to hold that because there may be an element of futurity in the phrase "wherever and whoever they may be," it was the testator's clear intention to describe the members of an artificial class to be ascertained at the time of the death of the last survivor of the beneficiaries of the income, upon the assumption that the testator shall die at that precise moment. Respondent argues that "the great weight of authority holds that this language does indicate an intent to depart from the usual meaning of the word 'heirs.'" But we find the great weight of authority to the contrary.
The Estate of Washburn,
Respondent also cites the case of Hall v. Wright,
Respondent also directs our attention to the case of In reWinter,
"Thirdly. I will and bequeath to my wife Annie Winter, all of my estate that I die possessed of, except the ranch I am living on, on Union Island, San Joaquin county, California, *429 which I will and bequeath to my wife Annie Winter for the remainder of her life; then it is to be sold and the proceeds to be divided between my surviving brothers and sisters."
As appears, the property was devised to the testator's wife. The will provided that upon her death: "Then it is to be sold and the proceeds to be divided between my surviving brothers and sisters." The court held that the testator intended the proceeds to be divided among "the brothers and sisters thensurviving." (
Neither of the words "then" or "surviving" is present in the Newman will. Here the respondent trustee is not directed to convey to "my then surviving heirs at law," or even to "mysurviving heirs at law."
In both cases, Hall v. Wright and In re Winter, supra, it is apparent that the word "then" is used in an adverbial sense, and so used was regarded by the appellate tribunals as of impelling importance. Mere words of futurity without the adverb of time are insufficient to preclude the application of the general rule. (Mortimer v. Slater, L. R. 7 Ch. Div. 322.) Words expressive of future time are to be referred to the vesting in possession if they reasonably can be, rather than to the vesting in right. (In re Kenyon et al.,
The case of In re Cooper's Will,
The decision in the Cooper case does not state the rule of construction established by the court of last resort in New York. It is a decision of a lower court and is contrary to the rule announced by the court of appeals of that state in In reBump's Will (1922),
When the testator executed the will he had a wife, a daughter, two sisters, two aunts, and a number of cousins. One of these sisters predeceased him. The other relatives survived him. The daughter died before the widow, unmarried. The question arose after the death of the widow.
The court of appeals held that the word "heirs" must be interpreted in its natural sense unless an intention to use the word in a different sense is clearly manifested in the will; that words of futurity do not indicate any such intent. The court said: "Nor do we attach importance to the phrase 'such persons as would be entitled . . . as my heirs.' While speaking as of the death of the testator, the will was prepared some years before. When writing it, he refers to the future — 'as would be my heirs at the time of my death,' or 'as would be my heirs at the termination of the life estate.' One intent is as likely as the other."
Numerous cases from other jurisdictions are cited and quoted from by respondent. It may be said as to all of them that none disputes the paramount rule that the ultimate question is the intention of the testator as expressed in the will. The real question discussed in all of them is: What did the testator mean in view of the language he has *431
used in his will, in the light afforded by certain rules of interpretation which must prevail where a contrary intent does not clearly appear on the face of the will? Such is the question here involved. Of this class of questions it may be said, with more truth, perhaps, than of any other, that each case depends upon its own peculiar facts, and that precedents have comparatively small value. Except for the establishment of general principles, very little aid can be procured from adjudged cases in the construction of wills. (Estate of Wilson,supra; Estate of Henderson,
Guided by the statutory and general rules of construction preliminarily adduced herein, with a copy of the will of Charles Newman before us, and after a careful consideration of its context, we believe that we would not be justified in holding that the language of that document shows a clear intention on the part of the testator to deviate from the laws of inheritance of California. Unless the will affords clear and unequivocal evidence to the contrary, all doubts will be resolved in favor of the heirs at law at the time of testator's death. (In re Swann's Estate, Appeal of Bell,
Because of the views herein expressed we deem it unnecessary to consider other points made by appellants.
The decree of distribution is reversed.
Knight, J., and Tyler, P. J., concurred.