Opinion
Rehearing Denied Oct. 1, 1930
Hearing granted by Supreme Court Nov. 13, 1930.
Appeal from Superior Court, San Luis Obispo County; T.A. Norton, Judge.
In the matter of the estate of Frederick Rauschenplat, deceased, of whose will James W. Stairs is executor. From a judgment construing the will in favor of the contention of Pauline Stairs and Wilhelmina Battie, Adolph Wilhelm, Louis Greve and others, beneficiaries under the will, appeal.
Affirmed.
HOUSER, J., dissenting.
COUNSEL
John Carfraie Birnie, of San Francisco, for appellants.
H.J. Dubin, of San Luis Obispo, for respondents.
OPINION
YORK, J.
This is an appeal from a judgment construing the will of Frederick Rauschenplat, deceased, which contained, among other provisions, the following clause:
"Secondly, I give, devise and bequeath all of my estate, real and personal, and wherever situate, to Wilhelmina Battie, my sister, of Hamburg, Germany; to all of the living children of my deceased half brother, Mathias Grayfe, late of Hamburg, Germany— and to Paulina Stairs, daughter of James W. Stairs, of San Luis Obispo, California, share and share alike."
The children of Mathias Grayfe (Greve) are appealing from a judgment of the court below decreeing a distribution to the various persons named, maintaining that it was the intention of the testator, looking at the will from all four corners, that the estate should be distributed per capita as to the persons named in the will, and also per capita to each child living of the deceased half-brother, Mathias Grayfe. The decree gives to each of said three children one-ninth of the property. Under their contention each one of them would receive one-fifth.
"In legal contemplation a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number." Estate of Murphy, 157 Cal. 63, 67, 106 P. 230, 232, 137 Am.St.Rep. 110.
In the cited case the will disposed of the property equally among the four children of a deceased sister, naming them, share and share alike.
The court says further in said case, at page 67 of 157 Cal., 106 P. 230, 232, 137 Am.St.Rep. 110: "All the persons who are to take were specifically named and the share of each was designated. In fact, it is not only quite apparent that under the rule relied on this devise cannot be said to contain any of the elements which should characterize a gift to a class, but the plain impression which one would receive by reading the clause is that the testator intended to give to each individual an equal portion of his estate. It is true that the testator uses language in the clause of his will which would, if it stood alone, amount to a devise to a class. This would be the result if the devise had been to ‘the four children of my late sister Catherine’ without further words. But here the terms of the bequest— the designation of the number of the children, followed by a repeated and express devise to them by name and in an equal share— cannot be ignored so as to make the other words in the will constitute a class."
There is nothing in the will before us to indicate that the testator intended that "all of the living children of my deceased half brother" should share per capita with the other persons named, or that the deceased even knew how many children of said half-brother were living. On the contrary, from the language used in the will, it is to be inferred that the testator did not have in mind the individual children of the deceased half-brother, but contemplated them as a single class, the descendants of his half-brother.
Under the rule for which appellants contend, the three children of decedent’s half-brother would receive, in the aggregate, three times the share of the estate which would be given to his sister. Considering that the testator had no personal acquaintance at all with either his nephew or his nieces, it does not seem probable that he would have desired to thus discriminate in their favor, as against his sister. There appears no good reason why the will should be interpreted otherwise than, under the rule indicated in Estate of Murphy, supra, according to the plain meaning of the words used by the testator. Thus the two named devisees and the class described as children of the deceased half-brother will take "share and share alike," and also the said children, among themselves, "share and share alike."
The judgment is affirmed.
I concur: CONREY, P.J.
HOUSER, J.
I dissent. It is clear that the language which appears in the opinion in the case entitled Estate of Murphy, 157 Cal. 63, 67, 106 P. 230, 137 Am.St.Rep. 110, quoted in the majority opinion, and relied upon as authority for the conclusion therein reached, is unnecessary for a decision of the point involved and should be considered as "dictum." The same thing is true in the Estate of Fisk, 182 Cal. 238, 240, 187 P. 958. Although in the latter case the estate was to be "divided equally between my daughter-in-law Maude Bryant Fisk, and the four children of my late husband’s sister, Mrs. W. Dunn, viz., William Dunn, Aida Furst, Charles Dunn, and Clarence Dunn," it was held that such language demanded an equal division of the residue of the estate among the five legatees, and not one half to the daughter-in-law and the other half to the four children.
The case of Estate of Morrison, 138 Cal. 401, 71 P. 453, is directly in point. Therein the residue of the estate was "to be divided between my sister Mrs. Wann and her daughters and my brother Edward Stettinius"; but, unlike the instant case, the will contained no express provision that such residuary beneficiaries should take the estate "share and share alike." By other provisions of the will the "daughters" were mentioned by name and each of them was left a specific legacy. It was held that the intention of the testator was that the residuum of the estate should be equally divided among the four persons per capita; and that no class composed either of the mother and the daughters, or of the two daughters, was contemplated. Regarding the construction which should be placed upon the words "share and share alike," the court said: "It is further argued by appellant that the omission to add to the residuary clause of the codicil the words ‘share and share alike’ shows, or tends to show, that the construction above given is wrong. It is true that in the original will that expression is used three times, including the residuary clause, and is used once in the codicil. It is quite true that the words ‘share and share alike’ would have prevented discussion as to the intention of the testatrix, but if the language used means the same thing, and especially when such meaning is clearly consistent with all its other provisions, their absence cannot justify a different construction."
In the case of Neil v. Stuart, 102 Kan. 242, 169 P. 1138, the will provided that the estate be divided "among my Brothers & Sisters children and David R. Neil and Andrew Neil, also Lula Keith equally." It was held that the three persons last named should take equally with each of the nephews and nieces per capita.
In Hill v. Bowers, 120 Mass. 135, where a testator left the residue of his property "to the children of my brother A, *** and to the children of my nephew B"; and where at the time of the death of the testator there were living eight children of "A" and two living children of "B." it was held that each of all such children took per capita and not per stirpes.
Although concededly the decisions throughout the various jurisdictions of the United States are not harmonious one with the other, in 40 Cyc. 1495, the rule of construction is thus announced: "A devise or bequest to the children of two or more persons, whether expressed as to the children of A and B, or to the children of A and the children of B, or to other relatives of different persons, usually means that such children or relatives shall take per capita and not per stirpes unless it is apparent from the will that the testator intended them to take per stirpes."
And so in 2 Jarman on Wills (6th Ed.) 1051, p. 205, the following statement of the rule occurs: "Where a gift is to the children of several persons, whether it be to the children of A and B, or to the children of A and the children of B, they take per capita, not per stirpes. The same rule applies, where a devise or bequest is made to a person and the children of another person; or to a person described as standing in a certain relation to the testator and the children of another person standing in the same relation."
In the instant case, although the names of the children of the deceased half-brother of the testator do not appear in the will, in consonance with the declaration in Estate of Morrison, 138 Cal. 401, 405, 71 P. 453, the words of the testator that the indicated persons are to take the property of the deceased "share and share alike" are convincing to my mind that the intention was that such children were to take per capita and not per stirpes.
With reference to the statement in the majority opinion herein that, if the contention of appellants should be sustained, "in the aggregate" the three children of the half-brother of the testator would receive three times as much as would his sister, and that it does not seem probable that the testator desired to discriminate in that manner, it is apparent that to consider any class of heirs "in the aggregate," as against any other class, or against an individual heir, would nearly always present an unfavorable, if not an unjust, comparison. For example, supposing that a testator should leave him surviving ten sons and one daughter, and that by his will he provided that each of his children should participate in the distribution of his estate "share and share alike." If the suggestion contained in the prevailing opinion herein is proper, it would follow that, because the ten sons "in the aggregate" would receive ten times as much of the estate as would the one daughter, the testator had unfairly discriminated against her. In the instant case, if the rule of construction for which appellant contends should be adopted, the result would be, not that each of the children of the half-brother of the testator would receive three times as much as would the sister of the testator, but that each of the children would share equally with the sister, and that the actual difference to the sister between the two methods of division of the estate would be the difference between one-third and one-fifth, which would be two-fifteenths. But, pursuing further the subject of suggested "discrimination" by the testator, assuming the correctness of the conclusion reached by my associates, does it seem probable that the testator would actually have desired that Paulina Stairs should receive one-third of the estate, while either his niece or his nephew should receive but one-ninth thereof? In other words, is it likely that the wishes of the testator were that a stranger to the blood should receive three times as much of his estate as would one of his own nieces or nephews; or that such stranger should receive equally with all his living nieces and nephews "in the aggregate?"
Again referring to the prevailing opinion herein, attention is directed to the statement that "there is nothing in the will before us to indicate *** that the deceased even knew how many children of the said half-brother were living." It may not be inappropriate to suggest that neither does it appear from the language of the will that the deceased was not fully informed in that regard. It is not improbable that it was the earnest wish of the testator that his estate should be divided among those only of his nephews and nieces who should be living at the date of the death of the testator; which direction in wills is not at all uncommon. As to the exact number of nieces and nephews who would so qualify, neither the testator nor any other person could state with any degree of accuracy. And, if the thought in the mind of the testator was that a certain portion of his estate should not be inherited except by immediate, living representatives of his deceased half-brother, the impossibility of designating such persons by name is clearly manifest.