Opinion
9-21-1955
Frances VAN STRIEN, Plaintiff and Appellant, v. Archie R. JONES, Executor of the Estate of Mary E. Ludwig, Deceased, Substituted, Etc., Defendant and Respondent.* Civ. 5084.
Bernice M. Coady and Joseph K. Coady, Bellflower, for appellant. Herbert C. Naylor, Ontario, for respondent.
Frances VAN STRIEN, Plaintiff and Appellant,
v.
Archie R. JONES, Executor of the Estate of Mary E. Ludwig, Deceased, Substituted, Etc., Defendant and Respondent.*
Sept. 21, 1955.
Rehearing Denied Oct. 3, 1955.
Hearing Granted Nov. 16, 1955.
Bernice M. Coady and Joseph K. Coady, Bellflower, for appellant.
Herbert C. Naylor, Ontario, for respondent.
SHELL, Justice pro tem.
There is no controversy relative to the facts involved upon this appeal. Appellant is the only child of the deceased, Henry Robert Ludwig, she having been born in lawful wedlock on June 22, 1913. The deceased left no other children, nor any child by any deceased child. Respondent, Mary E. Ludwig, now deceased, and for whom the executor of her estate has been substituted, was the surviving widow of Henry R. Ludwig, who died on July 23, 1952. His will was duly admitted to probate, his widow was appointed executrix of the estate, and letters testamentary were issued to her. On April 24, 1953, the court distributed all of the estate to the widow. Appellant received no formal notice of any probate proceedings, and was not named as an heir therein.
Subsequent to the decree of distribution in said estate, appellant filed this action in the superior court of San Bernardino county. The record on appeal does not disclose the contents of the complaint so filed, nor of the first amended complaint, but in her second amended complaint, appellant set up two purported causes of action, the first being designed to have a constructive trust declared in favor of appellant as to the assets of the estate distributed to the widow, and the second on a common count (money had and received) in the amount of $3,500, which was approximately one-half of the value of the estate distributed to the widow. A copy of the will of the decedent, Henry R. Ludwig, is attached to appellant's second amended complaint, and said copy is admitted to be a true copy of the original will. The will is dated October 20, 1949, names the testator's wife, Mary E. Ludwig as executrix, gives 'all the rest, residue and remainder of my property and estate' to Mary E. Ludwig, and contains the following Exclusionary paragraph: 'Iv. If any person who is, or claims under or though, a devisee, legatee, or beneficiary under this Will, or any person who if I died intestate would be entitled to share in my estate, shall, in any manner whatsoever, directly or indirectly contest this Will or attack, oppose or seek to impair or invalidate any provision hereof, or conspire or cooperate with anyone attempting to do any of the acts or things aforesaid, then I hereby bequeath to each such person the sum of One Dollar ($1.00) only, and all other bequests, devises and interests in this Will given to such person shall be forfeited and shall augment proportionately the shares of my estate going under this Will to or in trust for such of my devisees, legatees, and beneficiaries as shall not have participated in, and as shall have opposed such acts or proceedings.' (Italics ours.)
Respondent demurred generally and specifically to both counts of the second amended complaint. The trial court, on September 10, 1954, sustained the demurrer to each count without leave to amend, and on September 24, 1954, judgment for defendant was entered by the court.
Appellant urges but one point on appeal--that the court erred in sustaining the demurrer. She contends that the second amended complaint states a cause of action. She does not urge that the court abused its discretion by refusing leave to amend. We then must determine whether the allegations contained in either or both of the counts of the second amended complaint state facts sufficient to constitute a cause of action.
While a common count for money had and received is not vulnerable to a general or special demurrer, Smith v. Randall, 51 Cal.App.2d 195, 197, 124 P.2d 334, where a plaintiff seeks in a common count for money had and received to recover the same set of facts as are covered by another count of his complaint, and where such other court fails to state a cause of action, a demurrer to the common count is properly sustained. Rose v. Ames, 53 Cal.App.2d 583, 589, 128 P.2d 65; Neal v. Bank of America, 93 Cal.App.2d 678, 681, 209 P.2d 825; South v. Wishard, 123 Cal.App.2d 642, 650, 267 P.2d 827.
Section 90 of the Probate Code 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.'
Under the facts pleaded by appellant's second amended complaint, no evidence would have been admissible aliunde the will to establish the intention of the testator as to disinheritance of his daughter, the appellant. The question as to whether the decedent intended to disinherit the claimant must be determined, primarily, at any rate, from the terms of the will, without resort to extrinsic evidence. In re Estate of Trickett, 197 Cal. 20, 22, 239 P. 406; In re Estate of Hassell, 168 Cal. 287, 288, 142 P. 838; In re Salmon's Estate, 107 Cal. 614, 616, 40 P. 1030; In re Estate of Callaghan, 119 Cal. 571, 51 P. 860, 39 L.R.A. 689; In re Estate of Thompson, 62 Cal.App. 493, 496, 217 P. 127; In re Estate of Soulie, 72 Cal.App.2d 332, 335, 164 P.2d 565.
Language practically identical in meaning to that used in paragraph 'IV' of the will here under consideration, 'or any person who if I died intestate would be entitled to share in my estate', and which language we believe to be fairly equivalent to the word 'heir' when so used in a will, has been interpreted by our appellate courts to indicate that the testator had his children or their issue in mind in executing the will, thereby excluding an heir or heirs from sharing in the estate. In re Estate of Dixon, 28 Cal.App.2d 598, 599, 83 P.2d 98; In re Estate of Minear, 180 Cal. 239, 180 P. 535; In re Estate of Lombard, 16 Cal.App.2d 526, 60 P.2d 1000; In re Estate of Talmage, 114 Cal.App.2d 18, 249 P.2d 345. Other cases in which the exclusionary language was not, in effect, identical, but similar, and which was, on appeal, determined to have excluded the claimant from participation in the estate are In re Estate of Cochems, 112 Cal.App.2d 634, 247 P.2d 131; In re Estate of Labrie, 130 Cal.App.2d 235, 278 P.2d 760; In re Estate of Lindsay, 176 Cal. 238, 168 P. 113; In re Estate of Kurtz, 190 Cal. 146, 210 P. 959; In re Estate of Allmaras, 24 Cal.App.2d 457, 75 P.2d 557; and In re Estate of Doell, 113 Cal.App.2d 37, 247 P.2d 580.
Each of the cases cited by appellant, namely, In re Estate of Brainard, 76 Cal.App.2d 850, 174 P.2d 702; In re Castle's Estate (Castle v. Hendrix), Okl., 262 P.2d 704; In re Estate of Cochran, 116 Cal.App.2d 98, 253 P.2d 41; In re Estate of Price, 56 Cal.App.2d 335, 132 P.2d 485; In re Estate of Smith, 86 Cal.App.2d 456, 195 P.2d 842; In re Estate of Axcelrod, 23 Cal.2d 761, 147 P.2d 1; In re Estate of Rozen-Goldenberg, 1 Cal.App.2d 631, 37 P.2d 132; and In re Estate of Poisl, 44 Cal.2d 147, 280 P.2d 789, are distinguishable on the facts or the wording of the exclusionary clauses of the wills therein involved.
Appellant points to the statement made by the Supreme Court of Nevada in In re Ray's Estate, 69 Nev. 204, 245 P.2d 990, to the effect that the Dixon case, 28 Cal.App.2d 598, 83 P.2d 98, supra, cannot be said authoritatively to reflect the law of California. With this statement we cannot agree.
Appellant also cites the opinion of the Oklahoma Supreme Court in Castle v. Hendrix, 262 P.2d 704, 705, supra, in support of his theory that the language used in the instant case does not exclude appellant from sharing in the estate. In the will involved in that case, however, the only mention made of children or heirs was in the words "To my Dear Children", which were merely introductory to the provisions of the will. It was there held that such use of the words quoted did not disclose an intention of the testatrix to disinherit two surviving daughters, not otherwise named or provided for in the will.
We are unable to agree with the contention of appellant that the whole of paragraph 'IV', hereinbefore quoted, shows lack of dispositive intent and lack of intent to disinherit any particular person or those of any class. The will must be construed in its entirety. After preliminary provisions for payment of last illness, funeral and burial costs, taxes, and expenses of administration, the will leaves the residue of the estate to the testator's wife. Then follows paragraph 'IV' containing the exclusionary language, together with the provision that if any devisee, legatee, or beneficiary under the will, or any person 'who if I died intestate would be entitled to share in my estate', shall attack or contest or seek to impair any provision thereof, then the testator bequeaths to such person the sum of $1 only. (Italics ours.) The will then provides, in effect, that any bequest other than the $1 bequest provided by the will for such person so contesting or attacking the will shall be forfeited. We see no such uncertainty in this language as would make paragraph 'IV' ineffective as an intentional omission of appellant as the daughter of the testator.
We agree with the trial court in its appraisal of the effect of the facts alleged in the second amended complaint. No cause of action was thereby stated on behalf of appellant. The order sustaining respondent's demurrer thereto, without leave to amend, was correct.
The judgment is affirmed.
GRIFFIN, Acting P. J., and MUSSELL, J., concur. --------------- * Opinion vacated 299 P.2d 1.