In re Estate of Thompson

This appeal was taken from the decree of final distribution in the above-entitled estate, and involves the question of the construction of the provisions of the testator’s holographic will relating to the disposition of certain portions of the residue of the estate.

The testator, John Thompson, died January 1, 1916, and left surviving him as heirs at law two sisters, Henrietta and Emma Thompson; a half-brother, George Thompson; and numerous nieces and nephews. By his will he directed that his executors use whatever money and property was necessary for the support of his two sisters, * ‘ always providing liberally and well for Their needs and comfort”, and that upon the death of both sisters “all remaining property, if there be any, to be disposed of as follows. First One Thousand dollars, if there be that amount, and if not then as much as there may be, to be paid to the Trustees of the Odd Fellows Home, of the State of California. Said moneys to be used for building a Summer House, or suitable lounging or Resting place under the Oak Trees, on the Santa Clara Farm where the Home now is located.” Then, after bequeathing to his two sisters all personal property not other

One of the decedent’s sisters, Emma, died October 6, 1917, and on December 24, 1925, on petition of the surviving sister, Henrietta, the court distributed the $1,000 specific cash legacy provided for in the will to the trustees of the Odd Fellows Home. Henrietta died December 16, 1933, and prior to her death but subsequent to the death of the testator four remaindermen named in the will died. They were George Thompson, the half-brother; Annie Thompson, wife of George A. Thompson; Henry Schwerin, and Frederick Fillmore, the latter being one of the executors. Following the death of Henrietta, the surviving executor proceeded to close the estate, and in his petition for distribution he asked that the shares of the residue to which the deceased remaindermen would have been entitled if they had survived Henrietta, be distributed to the trustees of the Odd Fellows Home pursuant to that clause of the will reading “in case

As declared by section 101 of the Probate Code (formerly section 1317 of the Civil Code), a will is to be construed according to the intention of the testator. That is, the ascertainment of the testator’s intention is the cardinal rule of construction (Estate of Hartson, 218 Cal. 536 [ 24 Pac. (2d) 171 ]) ; and when the language used is definite, certain, and unambiguous, such intention is to be ascertained from “the four corners” of the will. (Estate of Metcalfe, 199 Cal. 716 [ 251 Pac. 202 ]; Estate of Clarke, 103 Cal. App. 243 [ 284 Pac. 231 ]; Estate of Sowash, 62 Cal. App. 512 [ 217 Pac. 123 ].) In other words, a testamentary instrument is to be examined with a view of discovering the decedent’s testamentary scheme or general intention, and the apparent meaning of the particular words, phrases and provisions is to be subordinated to this scheme, plan or dominant purpose and the technical import of the words should not prevail over the obvious intent of the testator. .(Estate of Puett, 1 Cal. (2d) 131 [ 33 Pac. (2d) 825 ]; Estate of Borba, 110 Cal. App. 150 [ 293 Pac. 809 ].) Moreover, the language used must be liberally construed with a view to carrying into effect what the will as a whole shows was the real intent of the testator (Estate of Hoytema, 180 Cal. 430 [ 181 Pac. 645 ]); and it should be so interpreted as to render it and every part thereof operative if it be reason

It is evident from a reading of the entire will under consideration that the uppermost thought in the mind of the testator at the time he wrote his will was to provide liberally for the support and well-being of his two surviving sisters during their lives; and that his secondary thought was to provide for the Odd Fellows Home. This secondary thought is clearly demonstrated by the clause of the will which provided that if upon the death of both sisters the entire residue of the estate amounted to no more than $1,000, it should all go to the Odd Fellows Home. Under the authorities above cited, some effect must be given if possible to the qualifying clause that “in case of death of any heirs” the residue should be paid to the Odd Fellows Home. Appellants argue that thereby the testator meant those who might predecease him. But the use of the word “heirs” in the clause tends strongly to show that he meant those whose deaths might occur subsequent to his and prior to the time the residue was ready for distribution. This latter construction is reasonable, and it is further supported by the last clause of the will wherein the testator stated that he had “a number of other Relatives”, but that he had made provision for only those he had named in the will.

Appellants have devoted much of their brief to a technical discussion of the meaning of certain legal terms usually employed by the legal profession in drafting wills; also in pointing' out the legal distinction between various kinds of remainders recognized in the law of wills; and in this connection it may be stated that where a will has been drawn by one skilled in law, the presence of technical terms-has weight in determining the - meaning of the will. But it is well established in this state by statute and judicial decision that the words of a will are to be taken in their ordinary and grammatical sense unless a clear intention to use them in another sense can be collected, - and that other can be ascertained; and that technical words are not to be taken in their technical sense where it satisfactorily appears that the will was drawn solely by- the testator and that he was unacquainted with such technical sense. (Sections 1324, 1327 and 1328 of the Civil Code, now em

The decree is affirmed.

Tyler, P. J., and Cashin, J., concurred.