Allmaras v. Allmaras

The questions here involved are whether the decedent omitted to provide in his will for his two sons, and if so, whether it appears from the will that such omission was intentional. On proceedings for partial distribution the probate court found affirmatively on the first question, and negatively on the second, and accordingly distributed the entire estate, appraised at approximately $3,500, to said sons.. (Prob. Code, sec. 90.) From the decree so entered the decedent’s brother, claiming to be sole devisee and legatee under the will, has appealed.

Said section 90 of the Probate Code superseded section 1307 of the Civil Code. It was enacted in 1931, and reads as follows: “When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.”

The portions of the will necessary to be considered are the third, fourth and fifth clauses thereof. In the third clause the testator declared that he was “a single man”, that he had “no living issue”, and that his “nearest living relatives” were eight brothers and sisters, all of whom he named. Three of them, according to recitals in the will, resided in North Dakota, two in Philadelphia, two in New York, and the whereabouts of the remaining one, a sister, were unknown. By the fourth clause the testator bequeathed his entire estate to his brother Robert (the appellant herein), or in case of Robert’s death, to the surviving brothers and sisters (except the sister whose whereabouts were unknown), or to the survivors of them; and the fifth clause was an exclusionary clause, reading as follows: “I have purposely made no provision herein for any other person, whether claiming to be an heir of mine or not, and if any person, whether a beneficiary under this will or not mentioned herein, shall

" We are of the opinion that, as appellant contends, there is no substantial difference between the present case and the Estate of Minear, 180 Cal. 239 [ 180 Pac. 535 ], and the Estate of Lindsay, 176 Cal. 238 [ 168 Pac. 113 ], which arose under section 1307 of the Civil Code, and wherein it was held in effect that the testator in each case intentionally omitted to provide for his children except as set forth in the exclusionary clause, and that consequently, since they took under the exclusionary clause, the provisions of section 1307 were not available to them.

In the Estate of Minear, supra, the testator declared in his will that he was a “single man”, and that he had “never been married”; but by the exclusionary clause he provided that “if there should be any other or others than the ones that I have named in my will above that claim to be my lawful heirs and can and do prove that they are to each of them I will $5.00 five dollars if there should be any such”. Admittedly, there, as here, the testator was survived by children, who contended, as respondents contend, here, that since no reference was made in the will to children, the general expression “my 'lawful heirs”, as employed in the exclusionary clause, must be taken not to have reference to children, but it must be presumed that the testator had forgotten his children and unintentionally omitted to provide for them. The Supreme Court held the contention to be unsound, saying: “Taking the two provisions together, we think it is perfectly clear that what the testator in effect said was this: ‘I never have been married, therefore I have no children. But if any persons other than those named in my will prove they are my heirs (either as children or otherwise) I give each of them $5.00.’ The true construction of the will we believe to be that the testator intended to exclude from any substantial share in his estate anyone not named in his will, whether a child or otherwise.”

In the Estate of Lindsay, supra, the testator first bequeathed the entire estate to his wife, stating he did so purposely knowing she “will provide for our son Clyde Lindsay”; and by the fifth clause in his will he declared: 11 Should any other

Here, as shown, the testator first declared he was a single man and left no living issue, and then in the exclusionary clause of his will he declared he had purposely made no

Respondents have made no attempt whatever to differentiate the present case from the Estate of Lindsay, supra; nor do they comment on the decision rendered in the Estate of Minear, supra, more than to say that in that case there “was no forgetfulness shown upon the face of the will nor in the circumstances surrounding the execution of it”; and in this latter respect they call attention to and seek to have considered certain alleged extrinsic evidence which nowhere appears in the record on appeal. The law is well settled, however, that the question of whether the testator intentionally omitted to provide for his children must be determined from the terms of the will itself, and that extrinsic evidence may not be resorted to for the purpose of showing such intention (Estate of Trickett, 197 Cal. 20 [ 239 Pac. 406 ]; Estate of Stevens, 83 Cal. 322 [ 23 Pac. 379 , 17 Am. St. Rep. 252 ] ; Estate of Utz, 43 Cal. 200 ; Rhoton v. Blevin, 99 Cal. 645 [ 34 Pac. 513 ] ; In re Salmon, 107 Cal. 614 [ 40 Pac. 1030 , 48 Am. St. Rep. 164 ]); and as already pointed out, the dispositive terms of the will in the present case are to all intents and purposes identical in form with those embodied in the will in the Estate of Minear, supra.

The numerous California cases cited by respondents in support of the probate court’s ruling deal mainly with the rules prescribed for the guidance of courts in construing the terms of wills in proceedings of this kind; and as to such rules there is no dispute. Nor are any of the three cases cited by respondents from other jurisdictions controlling. It was expressly held in the Estate of Lindsay, supra, that the decision in the case of Boman v. Boman, 49 Fed. 329 , cannot be taken as authority in this state; the Nevada case, In re Parrott’s Es

Therefore, in accordance with the views above expressed and under the authority of the Estate of Minear, supra, and the Estate of Lindsay, supra, it is ordered that the decree appealed from be and the same is hereby reversed, and that a new decree be entered distributing to each of respondents the sum of one dollar, as provided in the fifth clause of the will, and that the residue of the estate be distributed to the person or persons entitled thereto under the fourth clause of the will. It is further ordered that the costs of appeal be paid out of the assets of the estate. (Probate Code, see. 1232.)

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

A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 21, 1938.