*1 against Appellant protest filed $3,000 sum of cash. proposed exchange, ground had not been on the on the However, petition granted distributed. said respective properties ground exchange that notice estate. The order recited best interests of the duly given and that evidence both oral hearing has been ju- documentary introduced. court had been presented, and there petition risdiction to entertain the appeal on its face. No void showing that the order was September 27, 1937. The from such filed until order was date, last-mentioned long prior to the order had become final any avail to present too late to be attack comes appellant. present objections
It therefore appellant’s follows that may successfully to the two orders herein attacked not be settling urged appeal on this was taken from the decree the final of Wm. G-.Richards’ successor. enter- accounts To objections put stamp tain this time those would be to approval an action which amounts no more than, on a col- attack on the said orders. lateral two settling it follows that decree ac- foregoing Prom hereby be, is, should and it ordering distribution counts and affirmed. In Bank. February 3, No. 5315. 1941.]
[Sac. TODD, B. Estate RUSH Deceased. In the Matter of TODD, Minor, etc., Appel ADDISON RIDGEWAY Respondent. TODD, lant, INEZ v.
Henry E. Monroe, Easley Julia M. Geary Geary and & and Appellant. C. J. Tauzer for Keyston
Grove J. Fink and Garton Respondent. D. for CARTER, J. appeal This isan from decree of final dis- tribution, which distributed entire estate of Rush B. Todd, deceased, to surviving wife, Inez Todd, one re- spondents herein. The whole of said estate was decedent’s separate property. appellant Ridgeway Todd, Addison minor, grandson of the decedent and being the son of Todd, Addison son of decedent. Addison prior Todd died to the respondent death of decedent. The other is the execu- estate. tor undisputed.
The facts are The decedent made his will February 17, 1925, provided on which was part: “Paragraph hereby I Third: declare that I am married, that
my liv- Todd, name Inez that I have one child wife’s and hereby ing, to-wit, Paragraph Fifth: I son, Addison Todd. my equally, share give, bequeath estate, . . . and all of devise my said alike, my wife, Todd, said Inez and No men- survivor of them.” Todd, or to the Addison made in the appellant, grandson, decedent’s advancement; and it provided by he not settlement inten- appear will that the omission was does not from the tional. decedent, 7,
Appellant, grandson May was born on September Todd, decedent’s on Addison surviving him appellant as his sole issue. Decedent and left May 16, 1936. The of distribution distributed died on decree surviving wife. Todd, Inez the decedent’s entire estate to urges grounds reversal of the decree that Appellant appellant of the estate virtue sec- should take one-half pre- if he cannot tion 90 of the he entitled to one-half the estate reason vail on that basis prior legatees in the father, one of death of his *3 death, pursuant 92 to section of the Probate decedent’s Code. appellant if comes within terms of is clear that sec-
It disregard is entitled the Probate he tion 90 of portion of the estate allowed to him will receive the under and succession, in the instant of intestate ease is the laws property separate of decedent’s inasmuch as it was one-half (Prob. Code, wife survived him. property and decedent’s 221.) and secs. 90 adoption 90 of section
Prior to the Probate Code pretermitted concerning 1931, the law heirs was in embodied 1306, 1307, 1309 1308 and of Code. in Civil Sec- sections inheritance a child provided for born 1306 after the provided part: in “Whenever a testator has a child and will making his either in his of after lifetime or born leaving unprovided dies such child death, and for after provided in settlement, any neither for nor any way and child succeeds portion in his to the same mentioned property . that he have . . succeeded intestate.” had died Section 1308 testator related if the pretermitted which a heir’s share from should sources in 91 section of stated the Probate Code. This now come. provided heir take share 1309 Section
273 This equal by advancement. is now em he share if had an portion of 90 Code. The braced in section of “When particularly pertinent here read: 1307 which is chil any of his any provide in his omits to testator child, it ap unless dren, of deceased or for issue child, intentional, such or the pears was such omission in the child, has share the same issue such thereto as intestate, and succeeds he had died testator as (1306). ...” Section provided preceding in the 441 Barter, in In 86 Pac. re Cal. 1307 first construed [25 was testator to held that the failure of the 15], it was there grandchild a not make provide did mother was alive heir, grandchild’s pretermitíed where the the death of prior but at the the will was made time ground properly based on the was the testator. decision grand 1307 heirs of those made that section a child the testator dead at children who were remaining With made. section 1307 the will was the time in favorably the Barter case was considered Estate unchanged, 976], Matthews, and Estate Ross, 140 Cal. Pac. [73 although 233], question in exact in Barter was not issue either those in the case volved cases.
However, 1306, 1307, sections 1308 and 1309 repealed were Code of the Probate Civil adopted radically and contains additional clauses respects. changing those sections certain Section ‘‘ provides case, controlling part: the instant When law omits in his will for issue or for the whether born before the will or the death before after unless, appears . . from the . that such intentional, such child or such issue succeeds omission in the estate of the testator if he same ’’ portions The italicized are the *4 died intestate. clauses which sections 1306 or 1307 appear in not Civil Code. did We legislature the quite that obvious it believe intended change the rule announced law and the Barter the case if the issue a testator’s provide that child is not pro- shall by such issue succeed the a share of vided by succession the intestate same as if no will the whether regardless the testator’s child dies be- been made made, fore after the will is and whether the issue the child is born before will, assuming, or after the of course, the testator’s child before dies testator. To change determine that such accomplished was as contended by respondents, by and held the trial court would be to render practically meaningless ineffective and by the words added adoption change of section 90. To assume that the ac complished grandchildren limited born after the will parent was executed but whose was dead when the will was made, a would be strained and unreasonable construction. At the it best would make only extremely the added words fit unjust manifestly rare instances and would be as it would right confer heir on the child of a testa deny right tor’s son but to a child testator’s daughter. application of the This limited added words as interpreted Childs, App. (2d) Estate 103 [68 upon (2d) 306], by respondents relied in support of holding holding This contrary trial court. Childs, In expressed. supra, views above Estate it is stated, page 105, at effect of the added words give might protection is: grand “These words serve to to a parent born after execution of the will whose of its execution.” Manifestly, dead the time such a child protection received would have under section 1307 of the meaningless. Civil Code. Therefore the added words would be assuming protection prior did adop But such not exist gave only tion of 90 and that the added words such protection, protection then enjoyed could never daughter of the testator because such issue daughter the death born after were could have predeceased not whereas the issue of a protected, but son would be even such testator’s issue to come protected class would be within limited to those born not period gestation just than the normal later a time death, assuming just prior to the the son prior legislature We cannot believe to such death. in a limited effect or give make such a tended discrimina is patently words unreasonable the added and un such a construction just. To countenance would violate the well “ statutory construction. Ordinarily, rules of settled change seem essential phraseology of a statutory provision would indicate an intention part on the
275 rather meaning provision change legislature Royalties, One Oil (Young v. Three interpret than it.” 3542 (2d) 1065].) Section (2d) 1 639, 646 rea- “Interpretation must be provides: of the Civil Code “ ‘Interpreta- 722, 723: 23 Cal. Jur. sonable.” It is said it has provides. And so be The code tion must reasonable.’ must only language statute decided, of a been not that every interpretation, statute given but be reasonable opportunity construed, thus, when as a whole must be so compatible the dictates with common sense and arises, made justice. duty not to be words, it is of courts In other ambiguities in of extraneous ingenious find statutes because they interpret in such a manner that matters, but them possible, con- may ambiguity, give, if free from but constitutional, them only which not renders struction policy, and wise with a with sound sense consistent justice.” promoting view to foregoing reasons, part of the decision
For the holding Childs, supra, apparently protec- Estate of does not to a tion to heirs extend did not die until after where the testator’s child the execution disapproved. expressly Respondents because contend that of the Civil “Whenever a child contain words has did of his either in lifetime or born appearing above mentioned after his death” clauses Probate not in fact Code were added. The proposition is that whereas section 1306 obvious answer to solely protection with of an was concerned after-born is, executed, a child born after a will child, that provides for not Probate Code after-born protection but also the such children. Appellant insists if the propo- above-mentioned adversely him, determined sition is he is en- nevertheless half section 92 under titled to capacity as successor of his deceased father who was a the will. legatee under devises the estate to re- and the decedent’s spondent, Inez Todd or the survivor of them. opinion was the
In our intention to substitute legatee Todd sole respondent Inez under his will in the death of his Addison Todd. event This preclude appellant taking any from portion of the estate under ap section 92 of However, the Probate Code. pellant could under the terms of will have to the succeeded bequeathed share of the estate devised or father under provisions of said section he would be barred from sharing pro the estate as a heir under the visions of section 90 of said code.
The decree of distribution is reversed with direction the court below enter a decree accordance with the views expressed. herein J., Peters, J., pro
Shenk, tem., Ward, J., pro tem., and Gib J.,C. concurred. TRAYNOR, J., Concurring. I concur.
Decedent, Todd, disposed Rush by will of his estate “I hereby follows: give, bequeath my devise and es- all of tate, . . . equally, alike, share my and share wife said Todd, Inez my said Todd, Addison sur- or vivor In 1931, of them.” years than six more the mak- ing of Todd, this Ridgeway son of Addison Todd and grandson testator, of the provision was born. No was made him for in the will. leaving Addison Todd died his surviving father his testator, son him. Rush Todd, in 1936. gave The decree of distribution entire estate Todd, to Inez surviving Ridgeway ap- wife. Todd has pealed from this decree contending by of distribution (1) Code, virtue of Probate pretermitted he is a heir and therefore entitled to one-half the estate as his intestate (2) share and Probate entitles him to suc- ceed to his father’s share estate under the will. ‘‘ provides: Section of the Probate Code When a tes tator omits to for his will for whether born before or after the of the will or before or after the death unprovided testator, by child or issue are and such equal proportion not had an any settlement, and have by way them property advancement, bestowed on will such appears from-the omission was inten unless issue succeeds tional, the same such child share ’’ if he had died intestate. testator as in the estate of the provides: “If a devisee or Section testator, lifetime of the testamen- during the legatee dies tary appears to disposition him intention fails unless an place; except when substitute another in his testator, and bequeathed any kindred of is devised or leaving lineal legatee the devisee or dies before the executed, but descendants, or is dead the time the will de- surviving testator, such léaves lineal descendants by will in the same given scendants take the estate so he legatee have done had manner as the devisee or ’’ survived the testator. interpreted taking properly without Section 90 cannot be ordinary In section 92. situa- into account the effect of by who leaves predeceased his child where parent’s surviving child, grandchild will succeed to his grand- by If share under the virtue of section may express he also mention the will has received no regarded 90 with the as a heir under section right to claim intestate the estate addition to share of portion 92? The takes virtue he majority opinion may gives reason states that he not but reaching that conclusion. predeceased parent’s
A will take his who under a virtue section 92 cannot be *7 provides heir under section 90. When testator for his child a disposition in by will with no alternate the event that the any provided for predeceases him, he has law also child place child, will take the issue of the the issue since not, therefore, parent The testator has the under section 92. provide for the deceased child within omitted to issue provided 90. He has for such issue meaning the section predeceases him, child by operation law; the testator’s if parent’s share under grandchild will to his section the succeed 90. pretermitted a heir under section cannot be and hence among bequests provides other one Thus, suppose a testator grandson. mention of $10,000 but makes no a for his son predeceases the that the son testator and Suppose further under intestate share section grandson’s grandson by of section 92 virtue will take $100,000. The father, $100,000 and not the place of his only $10,000 the 90. under section whether question grand- or not the the case present
In the pretermitted heir under 90, section Todd, a Ridgeway of whether not he succeeds determination the upon turns parent’s import to his 92. The of section under section testamentary disposition 92 is that if a testator makes a pre- favor of of the child’s his child which fails virtue legatee having been deceasing testator, the no substitute parent. named, his place the issue of such child will take in If, however, provided property the should testator has situation, go such al- legatee an in such then alternate a property by the terms of ternate will take virtue of and, lapse legacy, issue being there predeceased nothing claim under child will be able to 92. present
In estate provided his case the testator Upon go his the survivor. should to his wife and or to right to receive the entire the death of the son therefore the passed will and to the wife under the terms of the in the Ridgeway Todd, an interest grandson, cannot claim 92. estate under section pretermitted problem as whether he a remains grandchild If the a testator is to
heir under section 90, grandchild’s heir take under respondent’s predeceased testator. It parent must have contention, grandchild only can take as a however, that the parent dead at the time the heir if was his at the made; parent was alive time the will was provide duty was to made, the testator’s pre- child, subsequently living if such then surviving grandchild pre- is not deceases meaning Barter, of section 90. In re termitted heir within construing 15], Civil 86 Cal. replaced by section held that a was not
now pretermitted by provide the testator’s failure to rendered parent was time the will alive him when made predeceased though parent the testator. Section “When provided: omits 1307 then or for the issue of any will for in his appears that such child, unless it omission was in- the issue of such child, tentional, has the same *8 testator as he had of the died estate intestate the ” repeal 1306, 1307, sections Following the of 1308 and . . . 1931, however, 90 Civil Code the 1309 following adopted clause italicized Probate ‘ ‘ to omits When a his will was added: child, any for the issue of Ms or will or be- making or whether born after before appears unless it . . . the testator or the death fore intentional, such omission was from the will that tes- of the the estate the same share issue succeeds to Despite ambiguity, intestate.” its tator as if he upon placed this added be to the most reasonable construction change thereby legislature intended clause pro- former section and to Barter case under rule of the though his even grandchild could be vide that a predeceased testator, was alive parent, subsequently who added making will. Unless at the time of the of the entirely disregarded is so it must either clause construed grandchildren where limited situations respect with making the will but the testator’s son has died before (Estate child thereafter. given the son’s wife birth to a has 306].) Childs, (2d) (2d) Since App. protected under the old such a been would have permitting hold that in it is more reasonable to predeceased child, born after the the issue before or of a pretermitted, making regarded legisla- as to be include child born at time after ture intended to though parent making was alive when the will view is reinforced the reference was made. This death in the clause issue born or after the before respect grandchildren, which, with would seem designed a testator’s son has cover the situation where predeceased but the the testator after after the given son’s wife has birth to a child testator’s death. interpretation respect possible grand- with other application part would limit the of this of the clause children dies; in which the unusual situation testator’s son to the dies, the testator and the testator makes son’s wife given, period the order within birth to a all gives nine months. light Ridgeway preter Todd must be considered a In this provisions heir under the mitted grandfather’s entitled to one-half of his therefore he is (Prob. Code, 221.) share. sec. his intestate rehearing denied March 3, for a petition
A