297 P. 882 | Cal. | 1931
This is an appeal by the three children of Mathias Grayfe (Greve) from that portion of the decree of final distribution construing the following provision appearing in the will of Frederick Rauschenplat, deceased: "Secondly, I give, devise and bequeath all of my estate, real and personal, and wherever situate, to Wihelmina Battie, my sister, of Hamburg, Germany; to all of the living children of my deceased half-brother, Mathias Grayfe, late of Hamburg, Germany, and to Paulina Stairs, daughter of James W. Stairs, of San Luis Obispo, California, share and share alike."
[1] The appellants maintain that it was the intention of the testator, looking at the will from all four corners, *34 that the estate should be distributed per capita as to the persons therein named, and also per capita as to each child living of the deceased half-brother, Mathias Grayfe. Under appellants' contention they will each receive one-fifth of the estate; whereas, under the decree of distribution, they receive but one-ninth of the decedent's property.
Appellants' interpretation of the distributive clause of the will appears to be the correct one. In Estate of Morrison,
A will providing that the estate be divided "Among my Brothers and Sisters children and David R. Neil and Andrew Neil, also Lulu Keith, equally", was held to be a devise to the three persons last named equally with each of the nieces and nephews percapita. (Neil v. Stuart,
In Hill v. Bowers,
In Lee v. Lee, 39 Barb. (N.Y.) 172, the gift of the residue was to a brother, the children of a deceased sister, and the daughter of another brother, "in equal proportions, share and share alike". It was held that each of the nieces and nephews took an equal share with the brother named as a beneficiary.
While the decisions are by no means harmonious, a fair statement of the rule appears in 2 Jarman on Wills, 6th ed., 205, where it is said: "Where a gift is to the children of several persons, whether it be to the children of A and B or to the children of A and the children of B, they take per capita and not per stirpes. The same rule applies where a devise or bequest is made to a person and the children of another person; or to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation. . . ." (Italics ours.)
Although the names of the children of the deceased half-brother of the testator do not appear in the will, if the thought in the mind of the testator was that a certain portion of his estate should be inherited only by immediate, living representatives of his deceased half-brother, the impossibility of designating such persons by name is clearly manifest. The words of the testator that those persons designated in the will were to take his property "share and share alike" are convincing as to his intention that the children of the half-brother, along with the others, were to take per capita and not per stirpes. This conclusion finds support in the following clause of the will wherein it is stated that "should any of the beneficiaries named herein contest this my will the share so bequeathed to him or her hereby shall go to the other beneficiaries in equal shares". (Italics added.)
[2] The clause in the will here under consideration is not ambiguous, and it was error for the court below to admit evidence of alleged declarations of the deceased as to how he intended disposing of his property. (Neil v. Stuart, supra.) Sections 1318 and 1340 of the Civil Code appear to be pertinent to this inquiry. *36
That portion of the decree of distribution appealed from is reversed, with directions to the court below to enter its decree in accordance with the views herein expressed.
Richards, J., Langdon, J., Preston, J., Shenk, J., Seawell, J., and Curtis, J., concurred.