Davison's Estate, In re

• Decision Date: 28 February 1950
• Citation: 96 Cal.App.2d 263,215 P.2d 504
• Court: California Court of Appeals Court of Appeals
• Parties: In re DAVISON'S ESTATE. DAVISON et al. v. SCHOCK et al. Civ. 17490.

Page 504

215 P.2d 504

96 Cal.App.2d 263

In re DAVISON'S ESTATE DAVISON et al. v. SCHOCK et al.

Civ. 17490.

District Court of Appeal, Second District, Division 2, California.

Feb. 28, 1950.

Vaughan, Brandlin & Wehrle, Los Angeles, J. J. Brandlin, Los Angeles, for appellants.

Joseph J. Burris, Los Angeles, for respondent Orthopaedic Foundation.

W. I. Titus, Los Angeles, for respondent A. Milton Davison.

MOORE, Presiding Justice.

By his will dated March 29, 1929, decedent bequeathed to his son Milton and to five friends $2000 each. By the Tenth paragraph of the instrument he devised the rest, residue and remainder of his property to respondent Foundation concluding with the following clause.

'In the event that for any reason the portion of my estate that would go to said Los Angeles Orthopaedic Foundation shall not be entitled, under the law, to receive all of the rest, residue and remainder of my estate, then, and in that event, all of said residue remaining over and above the legal share to which said Los Angeles Orthopaedic Foundation is entitled, I give, devise and bequeath, in equal shares, share and share alike, to the persons named in this Will as legatees, to-wit: Margaret Lucile Cecil, Mrs. C. W. Heath, Mrs. Betty Zuanich, Mrs. George Davidson, Oscar H. Schock, and Albert Milton Davison, or to such of them as shall be living at the time of my death.'

October 4, 1945, the testator published a codicil as follows:

'First: It is my wish and I hereby direct that my funeral services shall be conducted in accordance with the ritual of the Jewish faith and that interment shall be in a Jewish cemetery.

'Second: I hereby substitute Security-First National Bank of Los Angeles, a national banking association, as executor of my estate in lieu of Los Angeles First National Trust and Savings Bank.

'Third: I hereby reaffirm and republish my said Will unchanged except as herein expressly set forth.'

Testator deceased June 28, 1948, and on February 21, 1949, his son Milton filed his petition for decree determining heirship under section 1080 of the Probate Code. In April appellants filed their 'statement of Distributees * * * on claim of Heirship,' in which they asserted that they 'are the substitutional distributees' under decedent's will and each is 'entitled to one sixth of so much of the residue of said estate as is in excess of one third of the distributable estate.' By such statement they claimed $2000 for each of such appellants under the specific bequest and also one-sixth for each appellant of all the residue of the estate in excess of one-third of the distributable estate. After a hearing upon the petition and the claims of appellants the court made findings that (1) Milton is the only surviving child of deceased and there is no other progeny; (2) appellants and Mrs. Cecil ¹ are strangers in blood to the testator (3) Milton and his five colegatees were named as legatees of $2000 each; (4) the total valuation of the estate is $73,906.77; (5) after paying the specific bequests of $12,000, the residue of the estate, bequeathed to respondent foundations, a charitable corporation, is in excess of one-third of the distributable estate. From such facts the court concluded that (1) the foundation is entitled to receive the residue of the distributable estate except one-sixth of the remainder 'over and above one-third of the distributable estate and son Milton is entitled to have distributed to him one-sixth of said rest, residue, and remainder of said estate over and above one-third of the distributable estate'; (2) contestants as strangers in blood to deceased are substitutional legatees and are not entitled to receive or take any portion of said estate in excess of the specific bequest to each of them as set forth in the will.

On this appeal appellants contend that (1) the law in effect at the date of the will gave the foundation one-third of the distributable estate; (2) the execution of the codicil does not alter the dispositions of the will; (3) the interpretation of the will by the trial court is not binding on this court.

Appellants assert that the will involved herein is to be interpreted and governed by SECTION 1313 OF THE CIVIL CODE² which in 1929 controlled charitable dispositions. However, in 1931 and 1937 the restrictions upon charitable bequests were embodied in a new statute, to wit, section 41 of the Probate Code. ³ The second paragraph of the latter section was added by amendment in 1943. The language of the section reveals a relaxing of the restraints upon bequests to charitable uses. The legislature did not intend completely to outlaw a charitable gift even if it should exceed one-third of the estate, provided the will was published 30 days before the death of the testator. Even though a will is made within the thirty-day period such gifts are not for that reason rendered invalid. They are in such event merely voidable 'at the instance of an aggrieved heir of a designated class.' Section 41 confers no rights upon any person in addition to those specifically mentioned therein. Its provisions must not be ignored. Estate of Randall, 86 Cal.App.2d 422, 426, 194 P.2d 709. By virtue of its provisions the only person who can successfully object to the bequest to a charity is a spouse or consanguineal relative designated by the section. By its language a son takes the property only to the extent he would have taken it but for the gift to the charity. Otherwise the estate passes as provided by the will and the devise of the entire estate to the charity shall not be affected. (Ibid.)

As if to leave nothing to speculation or interpretation the second paragraph of section 41 provides that nothing in the entire section shall be construed to vest any property bequeathed to chairty in any person who is not a relative of the testator and of the class mentioned in the section unless and only to the extent that such relative takes the property under a substitutional bequest in the will or under the laws of succession because of the absence of other effective disposition in the will.

Applying the law of the Randall decision to the facts at bar we have a voidable gift of two-thirds of the residue of decedent's distributable estate. The share of such voidable devise that passes to Milton is that bequeathed to him by the residuary or substitutional clause. If there had been no such clause, there would be no effective disposition of the two-thirds residue by the will. After the valid, specific gifts to the son and his colegatees and the valid one-third gift to the foundation, appellants as strangers to the blood take nothing. Since Milton is a 'decedant' of the testator (sec. 41) he takes to the extent provided for him in the residuary clause while the balance goes 'in accordance with his will,' that is, to the Orthopedic Foundation. See In re Estate of Davis, 74 Cal.App.2d 357, 361, 168 P.2d 789; In re Estate of Haines, 76 Cal.App.2d 673, 676, 173 P.2d 693. As a 'descendant' son Milton was entitled to $6000 out of the two-thirds of the residue; but since appellants are not of the classes designated in the last sentence of the first paragraph of section 41, they take no part of the same two-thirds. The disposition to charity of the total estate is valid and enforcible as against strangers to the blood of the testator. In re Estate of Haines, supra.

A Will is Construed by the Law in Force at Testator's Death.

Appellants' contention that the will should not be interpreted according to the law in effect at the death of the testator is contrary to reason and authority. The conveyance of property by will is a privilege conferred upon man by society and it is neither enlarged by the wish of the testator nor restricted by desires of legatees or of legal heirs. The legislature has no inhibitions other than the constitution. If it determines that a law operates unjustly upon a testator or upon any class of devisees it is free to remove the restraints or relax the restrictions. That is what the legislature did in supplanting section 1313 of the Civil Code with section 41 of the Probate Code.

Decedent wrote his will in 1929. At that time his power to give to charity was limited to one-third of his distributable estate. In 1943 section 41 of the Probate Code was so amended as to permit a tstator to give his all to charity so long as he complies with the provisions of that section. In re Estate of Randall, supra. In 1945 the codicil was executed.

There are two reasons why the will...