238 P. 681 | Cal. | 1925
Petition for the probate of the will of Percy R. Barton, deceased, was presented to the superior court of San Diego County. In admitting the will to probate the court found, among other things, that Percy R. Barton died September 2, 1922, in San Diego County; *510 that he was a resident of San Diego County at the time of his death; that he left property in said county, and that the document presented was executed as required by law. Administration proceeded without interruption until the filing of the administrator's petition for distribution, when appellants appeared and interposed written objections to the distribution of certain personal property to the residuary legatee. The residuary legatee filed a demurrer to, and moved to dismiss, appellants' objections and the court sustained the demurrer and granted the motion to dismiss "without leave to amend or re-file said pleading." A final decree was then entered distributing the property in accordance with the administrator's petition. From this decree the present appeal is taken, and particularly from that part thereof which decrees that appellants are not entitled to receive any portion of decedent's personal property.
The point of contention has its origin in the second paragraph of the will, which reads: "I give and bequeath two hundred and fifty-five shares of the Capital Stock of the National City Bank, of the City of New York, State of New York, also Ten Thousand Dollars in cash, to Charles E. Blake, of Barrington, Rhode Island, his heirs and assigns forever."
The legatee named in the above-quoted paragraph of the will died prior to the death of the testator, Percy R. Barton, and appellants are the heirs of said legatee, Charles E. Blake. For the purposes of this appeal it is conceded that the testator was domiciled in the state of Rhode Island at the time he executed the will; that a considerable part of the personal property, bequeathed as mentioned in the above paragraph, was situated in the state of Rhode Island at the time of the testator's death, and that according to the law of Rhode Island the heirs of Charles E. Blake, that is to say, the appellants herein, would be entitled to receive the bequests, whereas, under the California law (Civ. Code, sec. 1343), the bequests would lapse by reason of the fact that Charles E. Blake predeceased the testator and the property would become part of the residue.
In the written objections to the petition for distribution it was alleged and appellants contend that they should have been accorded the opportunity of proving that, at the time of his death, the testator was a resident of the state of *511
Rhode Island and not of California. This contention cannot be sustained because the fact of residence was determined by the court when it admitted the will to probate. It has been repeatedly held that "The procedure of this state contemplates in the administration of the estates of deceased persons a series of definite proceedings, each of which is, as to the matters within its purview, separate. And an adjudication as to each step in this series is intended to be final in its nature, and not subject to review in a subsequent stage of the administration of the estate. . . . Each can be attacked directly by appeal, or by some motion authorized by law for the purpose, or, perhaps, by bill in equity, but an attack made in a different proceeding in the same estate would clearly be collateral." (Estate of Davis,
Appellants also point to the fact that they could not have successfully objected to the admission of the will to probate for the reason that, even though decedent was not a resident of this state, the court was warranted in admitting the will to probate in San Diego County upon the ground that decedent died in that county, leaving estate therein. (Code Civ. Proc., sec. 1294, subd. 2.) It is, therefore, urged that this is appellants' first opportunity to present evidence concerning the testator's residence. While it is true that appellants could not have prevented the admission of the will to probate in San Diego County if the requisite jurisdictional facts existed, nevertheless appellants were privileged to appear *512 and introduce evidence for the purpose of opposing an order admitting the will to probate based upon the ground that the testator was a resident of the county of San Diego and state of California. Having failed to do so the adjudication as to residence, made after due notice and hearing of evidence, is conclusive upon them in the present proceeding.
Then, so appellants contend, notwithstanding that it must be regarded as an established fact that the testator was a resident of California at the time of his death, the law of Rhode Island governs and controls the disposition of that portion of the personal property, described in the paragraph above quoted, which is physically within the state of Rhode Island.
In answer to this contention it may be stated that, where a testator leaves personal property situated in a state other than that of his domicile at the time of his death, it is a clearly established general rule that the disposition of such property is governed by the law of the state of domicile. This is so, not because the law of the state of domicile operates of its own force in the state where the personal property is situated, but because, as a matter of comity, the latter state adopts, as part of its own law, the law of the state of the domicile of the testator, and permits it to govern the property in certain particulars. The operation of this general rule of law is explained in Whitney v. Dodge,
This rule is embodied in section
Appellants seek to construe this section to mean that, since the law of Rhode Island concerning the lapsing of legacies is contrary to the California law, the California law does not govern. However, such is clearly not the import of the language quoted and is not the construction which has heretofore been accorded it in this state. To construe this section as appellants suggest, namely, that no law of the domicile of the owner is applicable to personal property if there is a contrary law in the place where the property is situated, would be an unwarranted interpretation of its language. The obvious meaning of the statute is that personal property is governed by the law of the domicile of its owner unless a general or specific law where the property is situated provides that the law of the domicile shall not govern. Thus, in Estate of Lathrop,
Applying section
It is urged by appellants that, even if the law of the domicile does control, it is the domicile at the time of the execution of the will, and not that at the time of death. *514 This suggestion is based upon the argument that the intent of the testator should be considered and that it is reasonable to assume that the expression of testamentary intent was influenced by the law in existence at the place where the will was made.
It is unnecessary to discuss what law would be applied if the question of the construction or interpretation of the will were before the court, for no such point is here presented. Suffice it to say that it has been expressly held in this state, in Estateof Sutro,
Finally, appellants point to the fact that section 1343 of the Civil Code provides that a legacy shall not lapse if "an intention appears to substitute some other in his place," and contend that they should have been permitted to introduce evidence of the circumstances surrounding the execution of the will for the purpose of showing that the testator intended the law of Rhode Island to apply. However, the "intention" mentioned is not the intention of the testator as to whether or not section 1343 shall apply to his will, for section 1343 applies regardless of the testator's wishes. The application of the section results in the lapse of the legacy, unless the testator prevents the lapse by inserting a provision for the disposition of the property in the event that the legatee predeceases him. As stated in Estate of Sutro, supra, "Under the code, the only way in which he could have made such intention appear — `clearly,' or at all — would have been by an express substitution of some other person" to take the place of Charles E. Blake in the event of his death. The intention of the testator expressed in the will was to make a testamentary disposition to Charles E. Blake — nothing more or less. It follows that the decree must be, and it is hereby, affirmed.
Richards, J., Seawell, J., Shenk, J., Lawlor, J., and Myers, C.J., concurred.
