Driscoll v. Heney

California Court of Appeal Nov 20, 1944 No. Civ. 14531Published

Before: McCOMB

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Holding. The court held that because the testator's mother predeceased him, the only valid bequest was to the named priest, and the remainder of the estate passed via intestacy. Consequently, the attempted disinheritance clause was ineffective because the testator failed to make a valid disposition of the remainder of his property.

Issues

Did the probate court err in ruling that the only valid disposition was to Joseph J. Truxaw?
Did the probate court err in ruling there was no valid disposition of the remainder of the estate?
Did the probate court err in ruling the disinheritance clause was invalid?
Did the probate court err in ruling the balance of the estate went to heirs at law?

Disposition. affirmed

Quotations verified verbatim against the opinion

“Before a disinheritance clause in a will becomes effective the testator must make a valid disposition of his property ; it is not sufficient that he merely evince an intention to disinherit certain heirs.”

“As to the balance of his estate he died intestate. Therefore, under rule 2 supra, the attempted disinheritance clause in the will was ineffective”

McCOMB, J.

This is an appeal from a judgment and decree of the Superior Court of Los Angeles County, sitting in

[868]

probate, construing the last will and testament of James P. Heney, deceased.

The essential facts are these:

James P. Heney died testate on October 3, 1941, leaving surviving him three brothers and three sisters. His mother predeceased him. Decedent’s holographic will reads as follows:

“November 27, 1939

“I, JAMES PETER HENEY being sound mind do this day make this my last will and Testament. In case I pass away before the passing of my beloved mother It is my desire that all of my possessions of every kind be turned over to her. I know that she will see that all of my just debts are taken care of and that I will have a Christian Burial. I would like to have my good friend Rev. Joseph J. Truxaw say my Funeral Mass and I would like for him to have ($1,000.00) One Thousand Dollars for this and other kindnesses he has given me. I would like very much for mother to make a will at once and I would like for her to leave the Property 1540 to 1548 W. Jefferson Blvd. to my sister Catherine B. Driscoll to belong to her during her life time Provided she keep up all payments and assessments the Balance will make her a nice living. At her death I want the property to be turned over the Archbishop of Los Angeles County to be used in Seminary Work of his choosing. I sincerely request that anyone not mentioned in this will and who is related to me will received not more than ($10.00) Ten Dollars each. This ■ will is written by my own hand and I hope my requests are carried out. Please give my big clock to some Institution.

JAMES PETER HENEY.”

This is the sole question necessary for us to determine:

Bid the probate court err in ruling that (1) the only valid disposition in the will was a bequest to Joseph J. Truxaw; (2) there was not any valid disposition of the remainder of decedent’s estate; (3) the attempted disinheritance clause in the will was invalid; and (4) the balance of decedent’s estate went to his heirs at lawf

This question must be answered in the negative and is governed by the following rules:

Driscoll v. Heney

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