Christen's Estate, In re

• Decision Date: 03 December 1965
• Citation: Christen's Estate, In re, 48 Cal.Rptr. 26, 238 Cal.App.2d 521 (Cal. App. 1965)
• Court: California Court of Appeals
• Parties: , 19 A.L.R.3d 1203 In re ESTATE of Charles CHRISTEN, aka Chas. Christen, aka C. Christen, Deceased. Alex CHRISTEN, Leo Christen, Mary Schuert, and Bertha Wyckoff, Plaintiffs and Appellants, v. Edward A. SCHUERT, as Administrator With the Will Annexed of the Last Will and Testament of Charles Christen, deceased, Elizabeth C. Goff, as Administratrix With the Will Annexed of the Last Will and Testament of Joseph P. Kelly, deceased, and Father Flanagan's Boys' Home, Defendants and Respondents. Civ. 22207.

Page 26

48 Cal.Rptr. 26

238 Cal.App.2d 521, 19 A.L.R.3d 1203

In re ESTATE of Charles CHRISTEN, aka Chas. Christen, aka C. Christen, DeceasedAlex CHRISTEN, Leo Christen, Mary Schuert, and Bertha Wyckoff, Plaintiffs and Appellants, v.Edward A. SCHUERT, as Administrator With the Will Annexed of the Last Will and Testament of Charles Christen, deceased, Elizabeth C. Goff, as AdministratrixWith the Will Annexed of the Last Will and Testament of Joseph P. Kelly, deceased, and FatherFlanagan's Boys' Home, Defendants and Respondents.

Civ. 22207.

District Court of Appeal, First District, Division 1, California.

Dec. 3, 1965.

Hearing Denied Jan. 26, 1966.

Russell T. Ainsworth, San Francisco, for appellants.

Donald J. Sullivan, San Francisco, of counsel.

A. B. Broaddus, Ukiah, for respondents.

MOLINARI, Justice.

Appellants, as the brothers and sisters and heirs at law of decedent, Charles Christen, appeal from the judgment granting the petition of the administrator with the will annexed for distribution of decedent's estate, after the payment of legacies, to Father Flanagan's Boys' Home, a Nebraska corporation (hereinafter sometimes referred to as 'Boys' Home'), and denying their objections thereto and their petition for distribution to themselves as decedent's heirs at law.

Questions Presented

1.Does the residuary clause of decedent's will validly bequeath the residue of his estate to 'Father Flannagans Boys Home * * *.'?

2.Are the proceeds of a bank account which decedent held in joint tenancy at the time of the execution of his will subject to the provisions of his will where he was predeceased by the joint tenant?

3.Is the claimant corporation, Father Flanagan's Boys' Home, the residuary legatee referred to in decedent's will as 'Father Flannagans Boys home * * *.'?

Statement of the Case

Charles Christen died testate June 3, 1957.His holographic will, which was dated July 7, 1948, provided as follows: 'After all bills are paid I will to Alex Christen, Leo Christen, Mary Schuert and Bertha Wyckoff $10.00, ten dollars each.Everything else I have or have an interest in or have a revenue of to Joseph P. Kelly or Father Flannagans Boys home, or the survivor of them.Except what has or maybe [sic] deeded away or disposed of in some other way.The last two mentioned may be the executor or anyone they choose with out [sic] bonds.Charles Christen'

Following the admittance of decedent's will to probate and the appointment of Edward A. Schuert as administrator with the will annexed (Joseph P. Kelly having predeceased testator), appellants filed a will contest which they subsequently dismissed voluntarily.Meanwhile, the administrator filed his petition for final distribution requesting that $10 be distributed to each of the four named legatees (decedent's brothers and sisters) and that the residue of decedent's estate be distributed to Father Flanagan's Boys' Home.¹To this petition appellants filed objections and petitioned for distribution of the residue of decedent's estate to themselves as decedent's heirs at law.Appellants' objections to the administrator's petition concerned the validity of the residuary clause of decedent's will and the identification of the residuary legatee (the first and third issues raised by appellants on this appeal).At this time the trial court determined that the residuary clause was valid and set for hearing the issue of whether Father Flanagan's Boys' Home was the legatee mentioned in the will.Appellants then filed an additional objection to the administrator's petition for distribution, asserting that decedent's will did not operate as to the proceeds of a bank account which was in existence in the name of 'Jos. P. Kelly or Charles Christen' at the time decedent executed his will.Thereafter, at a hearing in which appellants and Father Flanagan's Boys' Home participated, it was stipulated that the following documents be introduced into evidence: the signature card, ledger card, and passbook for the subject account; a 'Deposition in Behalf of DefendantFather Flanagan's Boys' Home'; and the articles of incorporation of this organization.Based upon this evidence, the trial court found that Father Flanagan's Boys' Home was the residuary legatee named in decedent's will; that decedent's will disposed of his entire estate and that it was not his intention to except the proceeds of the bank account from disposition under his will; and that since Kelly predeceased decedent, Father Flanagan's Boys' Home was entitled to take the residue of decedent's estate, including the proceeds of the subject bank account.

tThe Validity of the Residuary Clause of Decedent's Will

Appellants' first contention relates to the provision in decedent's will that the residue of his estate is to go to 'Joseph P. Kelly or Father Flannagans Boys home, or the survivor of them.'Appellants argue that this 'disjunctive gift * * * is void on the face of the will for uncertainty.'

The precise question has not heretofore been presented to our appellate courts.In Schade v. Stewart, 205 Cal. 658, 272 P. 567, a deed naming 'the 'heirs or devisees of Jennie C. Hurd, deceased,'' as grantees, was delivered to the executrix while the will of Jennie C. Hurd was still in the course of probate.(P. 659, 272 P. 568.)In holding that the deed was not void for uncertainty in the designation of a grantee, our Supreme Court, applying the rule that 'That is certain which can be made certain'(Civ.Code, § 3538), held that the deed furnished intrinsic evidence of an intent to vest title in the persons entitled to succeed to the property, whether as devisees and legatees under the will of the decedent or as heirs if the will was held to be invalid.In reaching its decision, the reviewing court recognized the common law rule that "a grant made to J. S. or W. S. in the disjunctive, is void for uncertainty," but applied the reasoning in Ready v. Kearsley, 14 Mich. 215, where a deed to "S or his heirs" was upheld.(P. 664, 272 P. 569.)In Ready, the appellate court, holding that the manifest intent in the case before it was to vest title in S., if living, or in his heirs or devisees, if he were then dead, noted that while a deed to J. S. or W. S. is void from the manifest impossibility of determining which shall take when the grantor has failed to express his intent, no such difficulty arises in the case of a grant to J. S. or his heirs because if J. S. is living he has not heirs and no two parties can claim adversely as grantees under the deed.

In Estate of Brunet, 34 Cal.2d 105, 207 P.2d 567, 11 A.L.R.2d 1382, the testator by will devised specific property "To Otto Speckter or his Estate * * *."(P. 106, 207 P.2d p. 567.)Speckter died before the testator.In holding that the devise did not lapse, the Supreme Court stated that 'The testator's use of the disjunctive 'or' clearly denotes an intention to substitute an alternative taker in the event Speckter predeceased him'(p. 107, 207 P.2d P. 568), and that such alternative taker was intended to mean Speckter's devisees or heirs.In reaching its decision the reviewing court applied the rule that 'The objective in the interpretation of a will is to ascertain the intention of the testator as disclosed by the language he had used'(p. 107, 207 P.2d p. 598), and the following rules of construction: (1)"The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative"(Prob.Code, § 102); and (2)"Whenever a disputed word or phrase may be reasonably given either of two meanings, that meaning should be given which will prevent intestacy * * *."(P. 109, 207 P.2d p. 569.)

Upon the analogy of the foregoing cases, the application of the rules utilized in Brunet, the application of the rules that a will is to be construed according to the intentions of the testator as of the date of the will's execution (Prob.Code, § 101;Estate of Carter, 49 Cal.App.2d 251, 254, 121 P.2d 540;Estate of Turney, 101 Cal.App.2d 720, 726, 226 P.2d 80), and unless a contrary intention appears on the face of the will a will is to be construed according to conditions existing at the time of the testator's death (95 C.J.S.Wills, § 629, p. 891;57 Am.Jur., Wills, § 1209, p. 795;Estate of Helfman, 193 Cal.App.2d 652, 655, 14 Cal.Rptr. 482;Estate of Chamberlain, 56 Cal.App.2d 458, 461, 132 P.2d 488), we are led to the conclusion that decedent in the instant case meant that if Kelly predeceased him the residue of his estate was to go to 'Father Flannagans Boys home * * *.'While it is not clear what decedent intended as to the division of the residue of his estate in the event that both named residuary legatees survived him, ² the will explicitly and unambiguously provides that if he is survived by only one of the two named legatees, the residue of his estate should pass to such survivor.Accordingly, since decedent's intentions as to the disposition of the residue of his estate in the event that only one of the named legatees survived his death is so clearly expressed in his will, and since such were the conditions existing at the time of his death, we conclude that distribution of such residue must be made in accordance with this expressed intention.We need not concern ourselves, therefore, with the abstract and academic question as to what decedent intended by his use of the disjunctive 'or' in the residuary clause since, as stated in In re Gorsch's Estate, 103 Misc. 156, 169 N.Y.S. 1064, 1066, 'Courts of construction will not proceed to pass upon questions which are abstract or academic, or in anticipation of events or conditions which may never materialize.'

It should be here pointed out that there is no merit to respondents' suggestion that the court below 'has construed the bequest as being to Joseph P. Kelly and Father Flanagan's Boys' Home or the survivor, making a joint...