80 Cal. App. 2d 958 | Cal. Ct. App. | 1947
This is an appeal by Ada C. Wignall, surviving wife of Alonzo Charles Wignall, brother of deceased, Edith Alberta Wignall, from a decree of distribution. Appellant’s contention is that under the will of Edith she, Ada, was entitled to take the residuary estate which had
The will declared testatrix to be a single person, named an executor, directed him to pay her debts, and provided as follows:
“Third: I direct my Executor to pay out of the residue of the estate, the following bequests subject to the following conditions:
“The persons named herein are to receive the bequests set forth provided they survive distribution of the estate. This provision is applicable to each person named as though the same were repeated after each person’s name. In the event they do not survive distribution, the bequests are to be paid to their surviving issue and if no issue survive, then to the surviving spouse. Subject to the said provision, I direct my Executor to pay the sum of Two Hundred Dollars ($200.00) to each of my cousins, whose names and addresses are as follows:
“Arthur H. Linaker, Los Angeles, California.
“Earl Wilkinson, Clinton, Iowa.
“Fourth: The sum of One Hundred Dollars ($100.00) to Annie W. Dingee of San Diego, California.
“Fifth: The sum of Five Hundred Dollars ($500.00) to Ada C. Wignall, wife of my brother, Alonzo Charles Wignall.
‘1 Sixth : I give, devise and bequeath the following personal property to the following persons:
“Books to Earl Wilkinson, Clinton, Iowa.
“Haviland China Tea set to Mrs. Willard Webber, 1530 Grand View Avenue, Glendale, California.
“Beleek tea set consisting of one tray, four cups and saucers, tea pot, sugar bowl and cream pitcher, to Josephine Shepherd, Hawthorne Farm, Libertyville, Illinois.
“Oil paintings and drawings done by my mother; also family portraits, to George H. Linaker, McGee, Arkansas.
“Seventh: After the above legacies have been paid and the personal property herein described, has been distributed, I direct that the remainder of my estate go to my brother Alonzo Charles Wignall.
“Eighth: I have, except as otherwise in this Will provided, intentionally omitted and with full knowledge, all persons who may claim to be entitled to share in my estate.
“In Witness Whereof, I have hereunto set my hand and seal this twenty-second day of April A. D. 1939.
Edith Alberta WignAll.”
The question is: Was Alonzo one of “the persons named herein” whose issue or surviving spouses were to take the bequests if the named person (or persons) should not survive distribution. The trial court held that Alonzo was not included and, hence, that appellant does not take the residue as his widow. As a result of this construction decedent was held to have died intestate as to her residuary estate, which was of the approximate value of $50,000. The residuary estate was distributed to eleven cousins, an undivided one-thirteenth interest each, and to appellant as the assignee of two other cousins an undivided two-thirteenths interest. The seven persons named in the third, fourth, fifth and sixth paragraphs were living at the time of distribution and took their several bequests of money and other personal property.
Certain familiar rules for the interpretation of wills have application here. Of two interpretations, that is to be preferred which will prevent a total intestacy. (Prob. Code, § 102.) This rule operates to avoid partial as well as total intestacy. (Estate of Olsen, 9 Cal.App.2d 374 [50 P.2d 70]; Estate of Northcutt, 16 Cal.2d 683 [107 P.2d 607]; Estate of Soulie, 72 Cal.App.2d 332 [164 P.2d 565].) The very fact of making a will raises a presumption that the testatrix intended to dispose of all of her property. (26 Cal. Jur. 899.) It must therefore be assumed that testatrix intended to dispose of her entire estate. This, of course, she accomplished by the residuary clause and the rule - above stated was thereby partially satisfied, but the reason for the rule should, we think, be taken into consideration in the interpretation of the contingent provisions, In making a complete disposition of her estate Miss Wignall had in mind the possibility that all the beneficiaries might not survive distribution. It was her plan to provide for that contingency, and she did so. The question is, then, such being, her plan, whether she believed she had accomplished it as to the residue of the estate, or understood that she had not done so, and that upon the death of Alonzo, during her lifetime, the
Respondent’s argument in support of the decree is twofold: They point to the statement in paragraph third, “In the event they do not survive distribution, the bequests are to be paid to their surviving issue and if no issue survive, then to the surviving spouse. Subject to the said provision, I direct my Executor to pay the sum of Two Hundred Dollars ($200.00) to each of my cousins, whose names and addresses are as follows” etc., and they contend that it would be unreasonable to suppose that testatrix intended the issue or surviving spouse to take the interest of any beneficiary whose bequest was not in the form of money. They say: “And may we reasonably ascribe to the testate an intention to give to the surviving spouse of one of the legatees named in the Sixth paragraph of the will any one of the articles of personal property specifically bequeathed in that paragraph? These articles are of little intrinsic value. They are of a class customarily given to specific legatees for special or sentimental reasons. Is it not highly improbable that these articles were intended to go to the surviving issue or spouse of the legatee? Can we imagine that the testate intended to give her Haviland China tea set to the surviving husband of her friend Mrs. Willard Webber, or her Beleek tea set to the surviving husband of Josephine Shepard, if she has one, or the Linaker family portraits to the widow of the legatee— a stranger to the blood, to whom they would doubtless be of no interest?” But is it less reasonable to believe that she would have wished her Haviland China tea set to go to the surviving husband of Mrs. Willard Webber than to thirteen cousins, only three of whom were remembered with specific legacies? And the same as to the books, the Beleek tea set and the oil paintings “done by my mother” and the family portraits? If she wished her cousin Arthur H. Linaker to have the oil paintings and the family portraits, why should she not also have wished that they be kept in his family in the event he should predecease her, as well as in the event he did not and would have them to pass on to his family ?
We pass now to the phraseology upon which respondents base the second phase of their argument. The basis of the
We should look to the circumstances under which the will was made. Testatrix was a spinster, approximately 73 years of age. Her nearest relative was her brother Alonzo, and after him came thirteen cousins, nine male and four female. She had a few personal friends whom she wished to remember, but she did not wish to leave anything to the female cousins, and remembered only three of the nine male cousins, namely, Arthur H. Linaker, to whom she left $200, Earl Wilkinson, who was given $200 and her books, and George H. Linaker, to whom she left her paintings. Her estate amounted to about $50,000, and the money bequests to only $1,000. Practically all of the estate was left to Alonzo. Next in the affections
We conclude that appellant is entitled to take the residuary estate.
As already noted, two-thirteenths of the residuary estate - was ordered distributed to appellant as assignee of two of the cousins under assignments previously obtained. She did not appeal from this portion of the decree and it is now urged by respondents that she has waived the right of appeal, in toto, by allowing these interests to be distributed to her. The rule that one may not accept the fruits of a judgment and yet appeal from it does not apply. Upon a reversal of the judgment appellant will be entitled to retain the interests which she acquired by assignment and also will receive the remainder of the residuary estate. She could not have appealed from the portions of the judgment that were favorable to her (Code Civ. Proc., § 938; Estate of Hughes, ante, p. 550 [182 P.2d 253], and is not estopped to prosecute her appeal. (Estate of Clark, 190 Cal. 354 [212 P. 622].)
The judgment is reversed with instructions to distribute the residuary estate to appellant.
Wood, J., and Kincaid, J. pro tern., concurred.
Respondents’ petition for a hearing by the Supreme Court was denied September 18, 1947. Carter, J., and Schauer, J., voted for a hearing.