Estate of Childs

California Court of Appeal May 20, 1937 No. Civ. 11463Published

Before: Wood

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Holding. The court held that a grandchild whose parent predeceased the testatrix is not entitled to an additional share as a pretermitted heir when the grandchild already inherits the parent's share under the anti-lapse statute. The court determined that the Probate Code did not expand the definition of pretermitted heirs to include grandchildren whose parents were alive at the time the will was executed.

Issues

Whether a grandchild whose parent was alive at the time of the will's execution is entitled to a pretermitted heir share in addition to the parent's share under Probate Code section 90.
Whether the addition of the phrase 'whether born before or after the death of the testator' in Probate Code section 90 broadens the rights of grandchildren to claim as pretermitted heirs.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We see nothing in these additional words which broaden the rights of petitioner.”

“As pointed out in the Barter case the words, “the issue of any deceased child”, refer only to the issue of children who may have died before the time of the execution of the will.”

WOOD, J.

—The petitioner, Emeleen Bate Childs, granddaughter of Emeline Childs, deceased, appeals from a judgment and decree in proceedings to determine heirship. Emeline Childs executed her will on September 24, 1932, dividing her estate into six equal shares and leaving one share to each of her four living children and the remaining two shares to the children of her two deceased children per

stirpes.

Petitioner, who was living at the time of the execution of the will, is the daughter of Ozro W. Childs, one of the four children of the testatrix living when the will was executed. Ozro W. Childs predeceased the testatrix. Petitioner contends that she is entitled to receive, in addition to the share which would have been received by her father, an additional share as a pretermitted grandchild.

Before the adoption of the Probate Code situations such as the present one were governed by sections 1306, 1307 and 1309 of the Civil Code. Section 1307 provided: “When any testator omits to provide in his will for any of his children, or for the issue of any deceased' child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in the preceding section.” This section was construed in

Estate of Barter,

86 Cal. 441 [25 Pac. 15, 16]. In that case the testator expressly disinherited a daughter who died after the execution of the will but before the death of the testator. It was held that the children of the daughter had no rights in the estate, notwithstanding they were not mentioned in the will. In holding that the children of the deceased were not “the issue of any deceased child” the court said: “The object of that section is not to protect any grandchildren except those who, as presumptive heirs at law, would be entitled,' had no will been made, to inherit at the time the will is published and made. That is the time when the children of the testator or the children of a deceased child are supposed, if not mentioned in the will, to have been omitted by oversight, because, at such time, their mother being dead, they would be pre

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Estate of Childs

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WOOD, J.

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