Estate of Brunet

34 Cal.2d 105 (1949) Estate of GASTON J. BRUNET, Deceased. O. G. FREYERMUTH et al., Appellants,

v.

MARY SPECKTER, Individually and as Administratrix, etc., et al., Respondents.

S. F. No. 17639. Supreme Court of California. In Bank.

June 28, 1949. Marion Vecki for Appellants.

W. S. Solari and Albert Picard for Respondents.

TRAYNOR, J.

By a holographic will dated October 1, 1941, the testator devised "To Otto Speckter or his Estate The Property at Clear Lake & Improvements on same." Speckter, who was not related to the testator, died on July 1, 1943. The testator died on May 14, 1945. In the course of administration the property at Clear Lake was sold, and the decree of distribution awarded the proceeds of the sale "to the heirs or devisees of Otto Speckter, deceased, subject to the administration of his estate." Appellants, executors and legatees under the will, appeal from the decree of distribution.

The only question presented on this appeal is whether the devise to "Otto Speckter or his Estate" lapsed by reason of Speckter's death before the death of the testator. If a devisee who is not kindred of the testator dies during the testator's lifetime, "the testamentary disposition to him fails, unless an intention appears to substitute another in his place." (Prob. Code, 92.) The determination whether the devise lapsed therefore depends upon whether the testator intended to substitute another for Speckter in the event he predeceased the testator and, if the testator had such intention, whether he substituted another in Speckter's place by designating Speckter's "Estate" as the substitutional beneficiary.

[1] Relying upon Estate of Sessions, 171 Cal. 346 [153 P. 231], appellants contend that the phrase, "or his Estate," does not indicate an intention by the testator to substitute an alternative taker in the event Speckter predeceased him. In that case, the court held that a bequest to "William E. Jackson [who predeceased the testator], and to his heirs and [107] assigns forever" lapsed on the ground that the italicized phrase was merely technical language customarily used to pass the fee to property. (See, also, Estate of Barton, 196 Cal. 508, 515 [238 P. 681]; Estate of Minor, 59 Cal.App. 616 [211 P. 807].) In the present case, however, the words "or his Estate," are words, not of limitation defining the estate that Otto Speckter was to receive, but of donation to designate the recipient or recipients of the devise. The testator's use of the disjunctive "or" clearly denotes an intention to substitute an alternative taker in the event Speckter predeceased him. (See Estate of Coleman, 189 Cal. 612, 619 [209 P. 571]; Estate of Minor, supra, 59 Cal.App. 616, 619; Atkinson on Wills, p. 728; 4 Page on Wills [Lifetime Ed.], p. 172.)