Estate of O'Brien

California Court of Appeal May 6, 1946 No. Civ. 12999Published

Before: Peters

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Holding. The court held that the testator's use of the phrase "take charge of" in his holographic will was ambiguous and, when read in light of the presumption against partial intestacy, constituted a valid bequest of the residuary estate to the named individuals.

Issues

Whether the testator died wholly testate or partially intestate.
Whether the phrase "take charge of" in the will constituted a bequest of the residuary estate or merely an appointment of administrators.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In interpreting a will the paramount rule is to attempt to ascertain the testator’s intent from the words used.”

“One of the important rules of construction peculiarly applicable to the present case is that in the absence of controlling language in the will to the contrary, it will be presumed that a testator intended to dispose of all of his property.”

“we should and do determine that the last sentence amounted to a bequest of the residuum to respondents.”

PETERS, P. J.

Appellants Anna F. Boivin and Margaret Hallaban filed this petition to determine heirship in the estate of William 0 ’Brien, alleging that they are first cousins of the deceased, that he died intestate as to a portion of his estate, and that as heirs at law they are each entitled to a one-fourth interest in the portion of his estate not willed to others. The trial court determined that the deceased had not died intestate and that there was no portion of his estate to which petitioners are entitled.

It is admitted that if 0 ’Brien died intestate as to any portion of his estate, petitioners, as two of his first cousins, are entitled to a portion of such estate. The question presented to the trial court and now involved on this appeal is whether 0 ’Brien died wholly testate or partially intestate. The solution of this problem turns upon the interpretation of a document admittedly testamentary in character, and admittedly properly executed by O ’Brien. The document, wholly written, dated and signed by the testator, reads as follows:

[407]

“Sept. 15 1943

‘ ‘ To Mr and Mrs Frank Bell

For their kindness and service to me I will to them the Casey ranch my intire stock of sheep cattle horses rig and my dog Lexcie and Three Thousand dollars.

Mrs Mary Bhead Mrs Preugschat will take charge of the rest inculding bonds

And Oblige

William O’Brien”

This document has been admitted to probate and Mary E. Bhead has been appointed and qualified as administratrix with the will annexed. At the hearing on the present petition the will was offered and admitted into evidence and it was stipulated that Anna Boivin, Margaret Hallaban, Mary Bhead and Margaret Preugschat are all first cousins of the deceased. No other evidence was introduced at the hearing relative to the proper interpretation of the will. The trial court found that by the will the decedent intended to dispose of his entire estate, and that by the last sentence he intended to and did bequeath the residue and remainder of his estate to Mary Bhead and Margaret Preugschat. It is from the judgment based on this finding that petitioners appeal.

Estate of O'Brien

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PETERS, P. J.

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