123 Cal. 337 | Cal. | 1899
These are appeals by two sisters of the deceased, Anna Young, from the decree of distribution made in the matter of her estate, from an order setting aside certain property as community property, and from an order setting aside the homestead to C. H. Young, the surviving husband.
Anna Young died testate on the 29th of April, 1894, and in due time her will was admitted to probate. That will is as follows:
“Calistoga, the 15th of April, 1894.
“Anna Young’s Will.—To C. H. Young, my husband, my bank book shall be handet to him, with gold watch and chain, also two deeds. After my husband deatts the two deeds shall go to Katarina Muhr. After all expenses are paid, the balance*340 of the money in bank shall be divided between C. H. Young and Katarina Muhr. Also my husband shall control all of my business, pay insuring, tax and repairs to property, furnish clothing to my niece, Katy Muhr, in reason, and her portion of the money in the German Savings Bank shall remain on interest until she is fifty years old.
“(Signed) ANNA YOUNG, my hand, seal.”
The testatrix at the time of her death owned real estate in the counties of Napa and Sonoma which was her separate property. There was on deposit in the German Savings and Loan Society Bank of San Francisco the sum of two thousand two hundred dollars, which was also her separate property. She left a note and mortgage, which was executed to her by one Fales, and other personal property, over all of which there is a contest as to whether or not it was community property or a part of her separate estate. C. H. Young, the husband, was appointed administrator with the will annexed. In his petition for a final distribution he asked that the Fales note and mortgage and certain furniture be declared community property; that a certain piece of real estate which was the separate property of the deceased and upon which she had declared a homestead in her lifetime, be set aside to him as a homestead; that one-half of the money in the German Savings and Loan Society be distributed to him absolutely, and the other one-half be distributed to him in trust for Katarina Muhr until she arrived at the age of fifty years; and that the lands in the counties of Napa and Sonoma be distributed to Katafina Muhr subject to a life 'estate in himself. Objections were presented to the petition. On the hearing oral and documentary evidence was introduced, and the court made .and entered its decree substantially in accordance with the petition, saving that the lands in Sonoma and Napa counties were distributed “to 0. H. Young, as trustee, during his life, for Katarina Muhr; that he account to her for the proceeds thereof; and that upon the death of said C. H. Young the possession-, thereof be delivered to said Katarina Muhr, the owner of said property.”
' By the evidence taken at the hearing it was shown that on April 11, 1894, Anna Young was sick; she was looking forward to undergoing a surgical operation from which she might not
1. To the introduction of this evidence many objections were taken and exceptions reserved. It will not be necessary to consider these in detail. The rules governing the introduction of evidence touching the interpretation and construction of wills are all well settled. Many of them are cast into succinct form in the provisions of our code. Ko more in wills than in any other writing is parol evidence admissible to vary the terms of the instrument. Parol evidence—even declarations of the testator—is never admissible to modify, change, or vary his expressed intent. (Civ. Code, secs. 1318, 1340.) This must be deduced from the
Applying these familiar principles of construction, it is apparent not only that the deeds are not referred to with sufficient definiteness to insure certainty in their identification, but that there is even a patent ambiguity in the very language of the will which attempts a designation of them. There shall be handed to C. H. Young “two deeds.” Any two deeds executed by any person conveying any kind of an estate in any land would fill the measure of this requirement, so that to the admissibility of parol evidence to aid this clause there are two objections, each equally insurmountable; the first that the description of an extrinsic writing must be so definite as not to require such evidence; the second, that parol evidence is never admissible to explain a patent ambiguity. (Civ. Code, sec. 1318.)
But, were these objections to the consideration of the parol evidence entirely removed, there are yet others equally fatal to the construction which the court in probate has put upon this clause of the will. There was no delivery of these deeds during the testratrix’s lifetime. What validity they possess, then, comes
What effect would a compliance with the terms of these directions have upon the title to the real estate? Unquestionably, none. For this reason it is strenuously argued that, as the law favors a construction which avoids total or partial intestacy (Civ. Code, sec. 1326), and, as it is not to be supposed that a testator in so solemn an instrument as a will would exact the doing of a vain and empty thing, it must be certain that this testatrix intended to devise some estate in these lands to the husband and cousin, and that the decree of distribution should do so accordingly. It is true that courts have always leaned to constructions which will avoid intestacy, and their swift willingness in this regard has passed into a rule of construction, but there are well-defined limits beyond which the courts have not gone, and beyond which they could not go without subverting all rules and leaving the interpretation of every will to the mere caprice and whim of the chancellor. One of these rules, firmly established, and never departed from nor even criticised, is that the
The case thus presented is one where the expressed intent of the testatrix is plain, but where a full performance of the acts which she has directed will amount in law to nothing. The testatrix, it may be assumed, did not understand the legal effect which would follow a compliance with her will, or thought that the legal effect would be other than it is. But a court for this reason is not justified in speculating over what may have been in the testratrix’s mind, and in substituting what it may believe to have been her intent in place of the directions which she has actually employed. The inquiry of the court in construing a will comes to an end when the intent has been discovered from the language of the will. Its duty is then limited to giving effect to that intent so far as may be, without doing violence to express law or the mandates of public policy. It is never at liberty to supply omissions or to wrest language from its plain import, and give it such a meaning as it may be guessed the testatrix would have intended if she had known that her own efforts to create a legal devise had resulted in failure. (In re Walkerly, 108 Cal. 659; 49 Am. St. Rep. 97.) Here, to repeat, there is no doubt as to the language and its meaning. The testatrix merely mistook the legal effect which would follow a compliance with her directions. While no form of expression is required to create a devise, and while considering that wills are fre
2. Construing and giving effect to the terms of the will relative to the disposition of the money in the German Savings Bank, the court decreed “that one-half of all money on hand in said estate up to and not exceeding eleven hundred dollars is the property of Katarina Muhr under the terms of said will, but by the terms of said will it is not to be distributed to her until she attains the age of fifty years, and that said portion of-said Katarina Muhr’s money be distributed to C. H. Young, as trustee for said Katarina Muhr, to be held by said trustee for said Katarina Muhr until she attains the age of fifty years, and that he account to her for the proceeds thereof.” As to this it
It is to be remembered that, as the appellants and contestants are heirs of the deceased, they are not parties injured, if a valid bequest of the moneys was made under the will, no matter what form under the interpretation of the court was given to that bequest. In other words, these appellants are interested only, if the deceased died intestate, as to the money. Section 475 of the Code of Civil Procedure suffers a judgment, decision, or decree to be reviewed, modified, or reversed only when the complainant or appealing party has sustained or suffered injury by it. It is clear by the terms of this will that there was made to Katarina Muhr a present gift vesting immediately. The time of payment only was deferred. If the condition deferring the time of payment is repugnant to the gift, the condition and not the gift would be void. (In re Walkerly, supra; 1 Jarman on Wills, sec. 837.) Katarina Muhr is not complaining of the interpretation given to this clause, and, having gone so far as to see that a valid bequest of the money was made to her, appellant’s concern in the matter is at an end, and we need be at no pains further to consider this question.
3. The so-called Pales note and mortgage were executed to deceased. From this the disputable presumption arises that they were her separate property. The court received evidence upon this question, as also upon the question of the title to certain articles of furniture, and decided that they were community property and therefore not subject to administration in the wife’s estate. It is insisted by appellant that this evidence had no proper place in proceedings under a decree of distribution, the sole purport of which is to distribute the property under the will or under the laws of succession; and the question of what property belongs to the estate, and is in the hands of the representative for distribution, is determined by the decree settling the representative’s final account. In this reliance is had upon the Estate of Burdick, 112 Cal. 387. This statement of the proposition by appellants is stronger than the law warrants and than the case above cited upholds. Wherever a man dies possessing both separate and community property, both pass into his estate
4. A homestead had been declared by the wife upon what was admittedly her separate property. The declaration was proper in form and substance.
If the property was of such a kind as that it could be impressed with the homestead characteristics, there is no question but the title to it descended absolutely to the husband. (In re Croghan, 92 Cal. 370.) The validity of this homestead, which was upheld by the decree, is here attacked upon the ground that the property, though used as a home by deceased and her husband, was in fact a public inn or hotel. The petition for distribution alleged the homestead. The appellants in their written objections did not deny these allegations, but, to the contrary, affirmatively alleged the same facts. In no way is the validity of the homestead brought in question. “The rules of pleading and
That portion of the decree which construes the will as creating a devise of the real estate described in “two deeds” mentioned in the will, and distributing the property in accordance with the devise so found, is reversed, and the court is directed to decree that this language in the will is insufficient to create a devise, and is inoperative for any testamentary purpose. In all other respects the decree is affirmed.
Temple, J., Garoutte, J., and Harrison, J., concurred.