71 P. 453 | Cal. | 1903
This appeal is from a final decree of distribution, and involves the interpretation of the residuary clause of the codicil to the will of Mrs. Julia Morrison, deceased.
Her will, dated August 1, 1891, was prepared by an attorney, and the codicil is olographic, and was made in 1894. She died December 18, 1895.
Two petitions for final distribution were filed, one by the executor, F.S. Wensinger, and the other by Edward R. Stettinius, *403 a legatee under the will, and were heard together. The residuary clause of the said codicil is as follows: —
"The real estate that I own at North Beach and Oakland, and at Fresno, I do not know the value of, I wish it sold, and the residue of the estate left after the payment of the above legacies to be divided between my sister, Mrs. Wann, and her daughters and my brother, Edward Stettinius, formerly of St. Louis, Missouri, at present residing at Chicago, Illinois. I hereby republish my said will and confirm all the provisions thereof, except as is modified or changed by this codicil."
It is contended that Mrs. Wann's given name is Bertha, and that she had but two daughters, Bertha von Quast and Florence Wann (now Florence von Schwerin). These, with Edward Stettinius, made four persons interested as residuary legatees, and the court by its decree distributed the residue of the estate among them equally, giving one fourth to each. From this part of the decree Stettinius appeals.
Three different interpretations of said clause of said will are suggested: —
1. That above stated as adopted by the court, distributing said residue equally among the four persons, one fourth to each.
2. That contended for by appellant, — viz., one half to appellant, the other half to Mrs. Wann and her two daughters, in some proportion, but in what proportion appellant is not concerned.
3. It is suggested, though not argued, that appellant and Mrs. Wann each take one third, the remaining third to go to Mrs. Wann's daughters as a class.
I think that, reading said clause apart from the other provisions of the will, the court below correctly interpreted its language, and, construed in the light of the other provisions of the will, the construction given it by the decree is right.
The ambiguities in the residuary clause, suggested by appellant, arise from the use of the word "between" after the word "divide," and the expression "and her daughters," following the name "Mrs. Wann."
In Senger v. Senger,
As applied to persons and things, the word "between" primarily refers to two, though Webster gives "among" as a synonym, and in a large number of cases the word is used in wills where a percapita devise or legacy was to more than two. As to the weight to be given to the word "between," it was said in Haskell v.Sargent,
It is further argued by appellant that the omission to add to the residuary clause of the codicil the words "share and share alike," shows, or tends to show, that the construction above given is wrong. It is true that in the original will that expression is used three times, including the residuary clause, and is used once in the codicil. It is quite true that the words "share and share alike," would have prevented discussion as to the intention of the testatrix, but if the language used means the same thing, and especially when such meaning is clearly consistent with all its other provisions, their absence cannot justify a different construction.
I advise that the judgment appealed from be affirmed.
Gray, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.
McFarland, J., Lorigan, J., Henshaw, J.