59 P. 315 | Cal. | 1899
E.I. Upham died leaving a will which, on its face, purports to dispose of all his property. His brothers, Joseph M. and Lorenzo Upham, who are his next of kin and only heirs at law, filed a petition in the probate court for a partial distribution to them of certain parts of the estate which they claim had not been disposed of by the will, and therefore went to them as heirs. The court held that the whole estate had been disposed of by the will, and that as petitioners were not devisees or legatees they were not entitled to partial distribution. *92 The petition was denied, and from the order denying it the said brothers Joseph M. and Lorenzo appeal.
By paragraphs I, II, and III of the will a certain piece of land known as the Vacaville Orchard, and ten thousand dollars in money, are given to Martha Muzzy, a relative of testator, and also sufficient funds to take care of the family cemetery lot; by paragraph IV the sum of ten thousand dollars is given to Sarah Muzzy; by paragraphs V, VI, VII, and VIII the sum of five thousand dollars each is given to certain named legatees; by paragraph X certain small sums of money are given to employees of the testator; and no objection is made in this case to any of the foregoing paragraphs. The contention of appellants is based upon paragraphs IX, XI, and XII.
By paragraph IX, which is quite long and somewhat complicated, forty thousand dollars, or, in lieu thereof, a quantity of land equal in value to that sum of money, is given to the executors of the will in trust for the use and benefit of the minor children of the appellants; and it is claimed by appellants that this trust, owing to certain provisions which it contains, is void, and that therefore the property mentioned in it is undisposed of by the will and goes to them as heirs at law. Under our views of the case, however, it is not necessary to pass upon the validity of this trust clause, for if the will creates a residuary devisee and legatee, as we think it does, then the latter takes the property described in any devise or legacy which for any reason fails or lapses, and the same does not go to the heir.
Section 1332 of our Civil Code declares the rule above noticed as follows: "A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will"; and section 1333 is the same, except that it refers to a bequest of personal property instead of a devise of real property. These sections abrogate the old common-law distinction between devises of real property and bequests of personal property, to the effect that a devise speaks from the date of the will and a bequest from the death of the testator, and according to which distinction it was generally held that property mentioned in a void or lapsed devise did not go to the residuary devisee. But under the old authorities, before any *93
change was made by statute, it was uniformly held that lapsed bequests went to the residuary legatee and not to the heir, and our statutory provisions above referred to are so clear to the point that lapsed devises take the same course that further authorities upon the question seem needless. However, in New York the statutory law is that a will which in terms disposes of all the testator's real property shall be construed to pass all the real property which he was entitled to devise at the time of his death; and under that statute it has been uniformly held in that state that property mentioned in a lapsed devise goes to the residuary devisee and not to the heir, unless a contrary intent is clearly expressed in the will. (Ricker v. Cornwell,
The main question in the case at bar, therefore, is whether or not a residuary devisee and legatee is created by the will. Such devisee and legatee is clearly created by paragraph XI of the will, if the trust created by that paragraph is not void for other reasons. The paragraph is as follows: "XI. I give and bequeath to the legally qualified and constituted trustees or managers of the Good Templars' Orphans' Home of Vallejo, said county of Solano, in trust for the use and benefit of the orphan children of said institution, any residue and remainder of my estate after carrying out my hereinbefore legacies and bequests." It is contended by appellants that this trust is void for reasons which are, substantially, these: 1. That the bequest is not charitable because the beneficiaries are not named with sufficient definiteness and certainty; and 2. That there are no trustees named capable of taking the property. We do not think that either of these contentions can be maintained. It must be remembered that charities — both as to the trustees and the beneficiaries — are more liberally construed than are gifts to individuals. (See 2 Story's Equity Jurisprudence, secs. 1165-67 et seq.) That the gift here was for charity is beyond question. It was shown by the evidence — which was properly admitted, under *94
section 1340 of the Civil Code — that the Good Templars' Orphans' Home at Vallejo had been in existence for a great many years, that its purpose was to take care of orphan children, that it accommodated about two hundred of such children, and that about that number were usually and continuously maintained there. To sustain the proposition that this constitutes a "charity" within the legal meaning of the word no further authority is necessary than that of People v. Cogswell,
It is contended by appellants that paragraph XII revokes, or annuls, or renders inoperative paragraph XI. Paragraph XII is as follows: "If my estate should be more or less than sufficient, after paying my debts, to provide for and pay all the above-mentioned devises, bequests, and legacies, then all the said devises, bequests, and legacies shall be increased or diminished ratably, except the provisions for the said cemetery lot and the devise to Martha Muzzy of the parcel of land of sixty acres in Vaca valley, known as the Vacaville Orchard." This paragraph, construed in the light of the whole will, may, perhaps, be considered as to some extent uncertain and ambiguous. Respondent contends that it simply provides for the possible contingency of the residue going to the Orphans' Home being greater than one-third of the estate. But, however that may be, it certainly cannot be construed as destroying, or as intending to destroy, paragraph XI. Paragraph XI is one of "the above-mentioned devises, bequests, and legacies"; and how can a subsequent clause which expressly refers to and recognizes as existing a previous clause be held to revoke or destroy the latter, where there are no operative words to that effect, or which express any such intent? Moreover, it is a rule of construction of wills — declared by our code (Civ. Code, sec. 1322) — that: "A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will"; and, applying this rule to the case at bar, it is plain that the "clear and distinct" provisions of paragraph XI are not revoked or destroyed by the language of paragraph XII, or by any "inference or argument from other parts of the will."
The foregoing facts make it unnecessary to consider the question whether, if paragraph XII could be construed as revoking paragraph XI, it would not follow that paragraph XII itself constituted as residuary legatees the other devisees and legatees whose devises and legacies were to be increased "ratably" — thus leaving appellants in no better position. On this point, however, *98
it may be well to observe that, as said in Morton v. Woodbury,
The conclusions above reached are strengthened by the consideration that it was the clear intent of the testator, expressed in the will, that no part of his estate should go to appellants; and this consideration is given great weight in all the decided cases where questions similar to those arising in the case at bar were involved. We do not see how the disputed clauses of the will, which we hold to be good, can be overthrown without wrongfully applying to a charity those strict and technical rules which can be rightfully invoked only as against private trusts.
The order appealed from is affirmed.
*99Henshaw, J., and Temple, J., concurred.