169 P. 233 | Cal. | 1917
Lead Opinion
Appeal from a decree of partial distribution.
Marie A. Matthews died testate. On the 6th of May, 1902, she had made a will by which, among other provisions regarding her property, she had bequeathed ten dollars to her daughter, Mary Louise Leonard, the mother of Howard Leonard, respondent herein. Mrs. Leonard died in 1907 *577 and in the following year her mother made a codicil by which she referred to and ratified and confirmed her will of May 6, 1902, in every respect save so far as any part of it was inconsistent with the codicil. No reference was made in the codicil to the death of Mary Louise Leonard, daughter of the testatrix, but by that instrument the amount given to Lee R. Matthews, a son of Marie A. Matthews, was increased. Respondent contends that the republication of the will by the execution of the codicil after the death of Mary Louise Leonard without mention of her son, Howard Leonard, makes him now a pretermitted heir, and the probate court so held. Appellants, on the other hand, are of the opinion that Howard Leonard is entitled to take under the will by right of representation only the amount of the legacy intended originally for his mother. They say that immediately upon the death of his mother respondent became the real legatee under the will; that section 1310 of the Civil Code then became incorporated in and was a part of the will; and that the subsequent republication of the will by the execution of a codicil merely confirmed the position of respondent as the representative of his mother under the will. The principal fault with this reasoning is that section 1310 of the Civil Code relates to the time of the death of the testatrix and not to the time of the decease of the original legatee. It is a statute of distribution and has reference to the conditions existing at the time of the death of the maker of the will if the provisions of that instrument remain unchanged. The death of his mother did not have the effect of erasing her name from the testament and writing in that of Howard Leonard in its place, because, of course, he could take the legacy intended for his mother in any case only in the event of his surviving his grandmother.
It seems clear, therefore, that when the will was republished by the execution of the codicil, the legacy to Mrs. Leonard was void as being an attempted gift by will to a dead person, and that the failure to mention Howard Leonard in the republication made him a pretermitted heir. (Civ. Code, sec. 1307) That the making and publishing of the codicil amounts to a republication of the will as amended by the codicil has been held many times. The rule is thus stated in 40 Cyc. 1216, 1217: "The general doctrine is well settled that a codicil executed with the formalities required by statute *578
for the execution of wills operates as a republication of a will, so far as it is not altered or revoked by the codicil, if the intention of the testator is not thereby defeated; and the two are to be regarded as but one instrument, speaking from the date of the codicil." Our own Civil Code, by section 1287, announces the same rule. In Payne v. Payne,
But in this case the testatrix has omitted expressly to provide for Howard Leonard, the issue of her daughter, either in the original will or the codicil, and it does not appear from either that the omission was intentional. The fact that by force of section 1310 of the Civil Code he might take his mother's legacy, if the codicil had not been executed, does not answer the requirement of section 1307 of the Civil. Code, which according to our interpretation contemplates express provision by the testatrix for such issue, unless it be made to appear by the will that the omission was intentional. It is true that all the requirements of section 1307 were satisfied as to the original will, for at that time there was no issue of any deceased child, the mother of Howard Leonard being alive. There was provision for her, and the statute was satisfied asto her. (Estate of Barter,
Appellant concedes that a legacy to a deceased child leaving issue is void. It was so held in effect by this court inEstate of Ross,
In Lindsay v. Pleasants,
A similar situation was considered in the case of Doe ex dem.Hearn v. Cannon, 4 Houst. (Del.) 20, [15 Am. Rep. 701], and it was held that a devise to a deceased person was a void and not a lapsed devise. Other authorities supporting this rule areBillingsley v. Tongue,
We conclude, therefore, that the execution of the codicil republished the will as of the date of said codicil; that so republished it gave a legacy to a person then dead; that such legacy was void; that respondent was not mentioned in the republication of the will; and that therefore he takes not under section 1310 of the Civil Code, as representing his deceased mother, but under section 1307 of the same code as a pretermitted heir.
The decree from which the appeal is taken is affirmed.
Lorigan, J., Henshaw, J., and Angellotti, C. J., concurred.
Dissenting Opinion
I dissent.
The case of the respondent rests upon the rule that the republication of a will by a codicil, whether express or implied, carries forward the language and effect of the original will to the date of the codicil, so that its effect will depend upon the conditions existing at that time; and upon the further proposition that a testamentary provision for a person who is dead at the time it is made is void. These propositions are well established, but I do not think they determine the case.
The respondent contends that the rule that the reaffirmation of a will by a codicil carries forward its effect to the date of the codicil is rigid and unvarying. This is not the effect of the authorities. The rule had its origin in England at a time when, under the ecclesiastical law, property acquired after the execution of a will, and before the death of the testator, did not pass by the will, and the principal effect of the rule *582 was to make the general dispositions of the will include all property acquired up to the date of the codicil. All the textwriters remark that since the act of parliament providing that a will shall speak at the death of the testator, and, so far as its terms are sufficient therefor, disposes of all property held by the testator at his death, this rule has been of less importance, and is much less frequently invoked.
The two propositions, that the execution of a codicil does not revive, in favor of the children of the legatee, a legacy which had lapsed by the death of the legatee after the making of the will and before the execution of the codicil, and that the codicil does not renew a legacy which, in the interval, had been adeemed or satisfied by the testator, are as well established as the rule carrying forward the language of the will to the date of the codicil. The principle on which these two propositions rest, especially that relating to ademption, is that the mere republication of a will by means of a codicil does not always change the legal effect of the will as it exists at the time the codicil is executed. If events occurring after its execution have removed one of the objects of the will, or canceled some of its provisions, and thereby changed its legal effect, the subsequent execution of the codicil does not, in the absence of express words, change the situation. If a legacy has lapsed, it remains lapsed; if it has been adeemed, it remains satisfied and extinguished. In the latter case, if the rule that the codicil carries forward the language of the will to the date of the codicil were applied, the effect would be to renew the legacy as given by the original will. But, as above stated, the contrary is held, and the legal effect of the will, coupled with the subsequent ademption, remains unaffected by the codicil. (1 Jarman on Wills, *158; Powys v. Mansfield, 3 Mylne C. 376, [40 Eng. Rep. 971].)
If we apply the same principle to the present case, we will find that it upholds the present will as it was before the codicil was made, with respect to the legacy to the daughter of the testatrix, who was the mother of the respondent. The legatee, being a daughter, and the respondent being her surviving child, the legacy had not lapsed. (See Civ. Code, sec. 1310) The rule that a lapsed legacy is not revived is therefore not even technically applicable. By force of section 1310 this legacy had not lapsed, but had been merely transferred at the death of the legatee, to her surviving child. It was *583 operative as a provision in his favor at the time the codicil was executed. Consequently, the will then made a valid disposition in favor of that child. The testatrix must be presumed to have known the law and to have made the codicil with that knowledge. She knew of the death of her daughter. Therefore, at the time she made the codicil she must be presumed to have known that her pre-existing will made a valid provision for this child, and must likewise be presumed to have reaffirmed it with knowledge of its effect in that particular, and to have intended thereby to continue that provision in existence.
Section 1307 of the Civil Code, relating to pretermitted heirs, applies only where a testator "omits to provide in his will for any of his children, or for the issue of any deceased child." Here, as we have seen, there was a provision in the will, as reaffirmed, for the child, Howard Leonard; a provision which the testatrix is presumed to have had in mind in making the codicil. There was no omission to provide for him, and consequently no basis for the claim that he is a pretermitted heir.
All of these rules are but applications of the paramount rule that the courts will always, if possible, ascertain the intent of the testator and will carry out that intent so far as it is lawful. A republication of the will at a later date implies that the testator intended it to be operative as of that date, so far as its language would make it so, and so far as the law permitted; therefore, the courts so hold. If a legacy was adeemed, a subsequent republication would not, of itself, carry any implication of an intent to give it again to the same person. Nothing but express words would do that. Hence the courts hold that such adeemed legacy is not renewed by a codicil. So, by like reasoning, where a legacy is given to a relation who afterward dies, leaving a surviving child to whom the legacy would pass by force of the law, a subsequent republication raises no inference of an intent to revoke the provision thus remaining operative, and, accordingly, the courts should infer an intent to leave it in force. (SeeEstate of McCauley,
Sloss, J., concurred. *584