Blake v. Clark

Petition for the probate of the will of Percy R. Barton, deceased, was presented to the superior court of San Diego County. In admitting the will to probate the court found, among other things, that Percy R. Barton died September 2, 1922, in San Diego County;

The point of contention has its origin in the second paragraph of the will, which reads: “I give and bequeath two hundred and fifty-five shares of the Capital Stock of the National City Bank, of the City of New York, State of New York, also Ten Thousand Dollars in cash, to Charles E. Blake, of Barrington, Rhode Island, his heirs and assigns forever.”

The legatee named in the above-quoted paragraph of the will died prior to the death of the testator, Percy R. Barton, and appellants are the heirs of said legatee, Charles E. Blake. For the purposes of this appeal it is conceded that the testator was domiciled in the state of Rhode Island at the time he executed the will; that a considerable part of the personal property, bequeathed as mentioned in the above paragraph, was situated in the state of Rhode Island at the time of the testator’s death, and that according to the law of Rhode Island the heirs of Charles E. Blake, that is to say, the appellants herein, would be entitled to receive the bequests, whereas, under the California law (Civ. Code, see. 1343), the bequests would lapse by reason of the fact that Charles E. Blake predeceased the testator and the property would become part of the residue.

In the written objections to the petition for distribution it was alleged and appellants contend that they should have been accorded the opportunity of proving that, at the time of his death, the testator was a resident of the state of

[2] Appellants also point to the fact that they could not have successfully objected to the admission of the will to probate for the reason that, even though decedent was not a resident of this state, the court was warranted in admitting the will to probate in San Diego County upon the ground that decedent died in that county, leaving estate therein. (Code Civ. Proc., sec. 1294, subd. 2.) It is, therefore, ur 1 that this is appellants’ first opportunity to present evidence concerning the testator’s residence. While it is true that appellants could not have prevented the admission of the will to probate in San Diego County if the requisite jurisdictional facts existed, nevertheless appellants were privileged to ap

[3] Then, so appellants contend, notwithstanding that it must be regarded as an established fact that the testator was a resident of California at the time of his death, the law of Rhode Island governs and controls the disposition of that portion of the personal property, described in the paragraph above quoted, which is physically within the state of Rhode Island.

In answer to this contention it may be stated that, where a testator leaves personal property situated in a state other than that of his domicile at the time of his death, it is a clearly established general rule that the disposition of such property is governed by the law of the state of domicile. This is so, not because the law of the state of domicile operates of its own force in the state where the personal property is situated, but because, as a matter of comity, the latter state adopts, as part of its own law, the law of the state of the domicile of the testator, and permits it to govern the property in certain particulars. The operation of this general rule of law is explained in Whitney v. Dodge, 105 Cal. 192 [ 38 Pac. 636 ], as follows: “Of course, the law of any one state or nation does not ex proprio vigore extend beyond its own territory; and any state would have the rightful power to provide that the rule above stated should pot prevail within its jurisdiction. But the rule is part of the law of every state in which it has not been abrogated either by express legislative language or the enactment of statutes which work such abrogation by necessary implication. In the absence of such abrogation the rule is not to be considered as imposed by foreign power upon the state in which it is invoked but as part of the law of such state. ’ ’

[4] This rule is embodied in section 946 of the Civil Code, which provides: “If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.”

Applying section 946 of the Civil Code to the present situation, the important point is not whether the law of Rhode Island concerning the lapsing of legacies is contrary to the California law, but whether there is any law of Rhode Island to the effect that the law of the domicile of the testator concerning lapsed legacies shall not apply to personal property situated within the state of Rhode Island. In the absence of evidence, it must be presumed that the law of Rhode Island upon this point is similar to the law of California, and according to the California law the law of the domicile of the testator controls. (Estate of Apple, 66 Cal. 432 [ 6 Pac. 7 ]; Collins v. Maude, 144 Cal. 289 [ 77 Pac. 945 ]; Whitney v. Dodge, supra; Estate of Lathrop, supra. See, also, Estate of Randall, 194 Cal. 725 [ 230 Pac. 445 ].)

[5] It is urged by appellants that, even if the law of the domicile does control, it is the domicile at the time of the execution of the will, and not that at the time of death.

It is unnecessary to discuss what law would be applied if the question of the construction or interpretation of the will were before the court, for no such point is here presented. Suffice it to say that it has been expressly held in this state, in Estate of Sutro, 139 Cal. 87 [ 72 Pac. 827 ], that section 1343 of the Civil Code, concerning the lapsing of legacies, “contains nothing which aids or was intended to aid in the construction of a will; it provides that a legacy given in apt words, and leaving no room for the play of interpretation, shall lapse if the legatee dies before the testator.” In other words, section 1343 of the Civil Code does not attempt to provide a method of arriving at the testator’s intent, but establishes a positive law for the disposition of property. Likewise, the Rhode Island law pleaded by appellants does not purport to interpret the language of the will. Both statutes are rules of substantive law concerning the transfer of property of a decedent upon the happening of an event beyond the decedent’s control. As in the case of other laws concerning the operation and effect of wills and as in the case of laws governing the validity and revocation of wills, it is the law of the domicile at the time of death that applies, at least, in the case of bequests of personal property. In Alexander on Wills, volume 1, page 345, the law is stated as follows: “If a testator, subsequent to making a testamentary disposition of personal property, removes to a different state, or country, and becomes domiciled there, in the event of his death his will is controlled, as to personalty, by the laws of his last domicile. Should different laws prevail and the will fail to comply with the requirements of the law of the last domicile of the testator, such change of domicile would, in effect, be a revocation of the bequests, since the personal property could not pass under the instrument,” citing In re Coburn’s Will, 9 Misc. Rep. 437 [ 30 N. Y. Supp. 383 ]; Irwin’s Appeal, 33 Conn. 128 ; Matter of Braithwaite, 19 Abb. N. C. (N. Y.) 113. See, also, Estate of Patterson, 64 Cal. App. 643 [ 222 Pac. 374 ].

Richards, J., Seawell, J., Shenk, J., Lawlor, J., and Myers, C. J., concurred.