Barnes' Estate, In re

• Court: California Supreme Court
• Writing for the Court: BURKE; TRAYNOR
• Citation: Barnes' Estate, In re, 47 Cal.Rptr. 480, 63 Cal.2d 580, 407 P.2d 656 (Cal. 1965)
• Decision Date: 22 November 1965
• Parties: , 407 P.2d 656 In re ESTATE of Myrtle Ivey BARNES, Deceased. Robert Erle HENDERSON, as Executor, etc., Petitioner and Respondent, v. Gene SNOW et al., Claimants and Appellants. L. A. 27848.

Page 480

47 Cal.Rptr. 480

63 Cal.2d 580, 407 P.2d 656

In re ESTATE of Myrtle Ivey BARNES, Deceased Robert Erle HENDERSON, as Executor, etc., Petitioner and Respondent, v. Gene SNOW et al., Claimants and Appellants.

L. A. 27848.

Supreme Court of California, In Bank.

Nov. 22, 1965.

Reid, Babbage & Coil and Horace O. Coil, Riverside, for claimants and appellants.

Harmon D. Spanner, Woodland Hills, for petitioner and respondent.

BURKE, Justice.

In this heirship proceeding, two of the heirs at law of decedent, Mrs. Barnes, appeal from an an order determining that under the provisions of her will Robert Erle Henderson, a nephew named in the will, is entitled to distribution of the entire estate. As will appear, we have concluded that the trial court erred in its conclusion that the will effectively disposed of testatrix' property. The order appealed from must therefore be reversed.

Mrs. Barnes died in September 1962 leaving a will, dated June 21, 1949, which was admitted to probate in January 1963, The will was prepared by an attorney, and declares that the testatrix was married, had no children, and intended by the will 'to dispose of all my property.' ¹ The will next provides that all of the testatrix' property is to go to her husband, ² and that in the event of the simultaneous death of testatrix and her husband the entire estate shall go to Robert Erle Henderson, ³ petitioner in this heirship proceeding. A no contest clause ⁴ and a disinheritance clause ⁵ follow. Testatrix' husband is named as executor, with petitioner as alternate. The will contains no residuary clause, and no dispositive clauses except those already mentioned and found in paragraphs FIFTH and SIXTH.

Carlton Barnes, the husband of the testatrix, predeceased her by more than five years. She left no lineal descendants, but did leave as her heirs at law two brothers, two sisters, and a nephew and nieces who are children of deceased brothers and sisters. Petitioner, a nephew, is not an heir at law, as his mother (the sister of testatrix) survives. (Prob.Code, § 225.)

Petitioner contends that under a proper construction of the will he is entitled to succeed to the entire estate. He is opposed by certain of the heirs at law. Over their objection the trial court received testimony from petitioner's mother concerning the relationship between petitioner and testatrix at the time of execution of the will. The witness stated that at about the time the will was executed (some 13 years before testatrix' death), petitioner was 29 years old, petitioner visited at the home of testatrix three or four times each week and a close relationship existed between them, testatrix was very fond of petitioner and often introduced him as her son, the two made outward displays of affection towards each other, testatrix spent many holidays at petitioner's home, and the other relatives did not visit testatrix; further, that testatrix was married in the year 1905 but had no children.

The trial court found and concluded that 'there is some uncertainty on the face of the will,' ⁶ and construed it in favor of petitioner. A decree was entered accordingly, and this appeal by two of the heirs at law followed.

The testimony of petitioner's mother does not assist in interpreting the will. It may serve to explain why petitioner was named as alternate beneficiary in the particular situation envisaged by paragraph SIXTH of the will (fn. 3, ante), but that situation did not arise. The extrinsic testimony sheds no light on the intention of testatrix with respect to the situation which actually had come into existence by the death of testatrix' husband some five years before her own death.

Further, the will makes no disposition whatever of the property of testatrix in the event she outlived her husband by several years, as she did. Although in paragraph EIGHTH the testatrix declared that no one should inherit the property she thus left undisposed of by her will, the law does not permit such a result. It is settled that a disinheritance clause, no matter how broadly or strongly phrased, operates only to prevent a claimant from taking under the will itself, or to obviate a claim of pretermission. Such a clause does not and cannot operate to prevent the heirs at law from taking under the statutory rules of inheritance when the decedent has died intestate as to any or all of his property. (Estate of Dunn (1953) 120 Cal.App.2d 294, 295-296, 260 P.2d 964, and cases there cited; see also Estate of Lefranc (1952) 38 Cal.2d 289, 295, 239 P.2d 617; Estate of Holtermann (1962) 206 Cal.App.2d 460, 470(14), 23 Cal.Rptr. 685.)

The rule is that a will is to be construed according to the intention of the testator, and so as to avoid intestacy. (Prob.Code, §§ 101, 102.) However, a court may not write a will which the testator did not write. 'To say that because a will does not dispose of all of the testator's property it is ambiguous and must be construed so as to prevent intestacy, either total or partial, is to use a rule of construction as the reason for construction. But a will is never open to construction merely because it does not dispose of all of the * * * property. 'Courts are not permitted in order to avoid a conclusion of intestacy to adopt a construction based on conjecture as to what the testator may have intended, although not expressed.' (Citation.).' (Estate of Beldon (1938) 11 Cal.2d 108, 112, 77 P.2d 1052, 1054.)

Here the testatrix clearly wished that her husband receive all of her property. Her will also demonstrates an awareness that under the circumstances set forth in paragraph SIXTH she might well have no further opportunity to designate an alternate, and therefore she named petitioner. However, as already noted,...