Estate of Carter

WARD, J.

An appeal from portions of a decree of settlement of final account and of final distribution in the matter of the estate of Mollie Carter, deceased, distributing to her daughter Agnes Carter all of her estate except that assigned by the daughter to other parties, including appellant, during probate.

Mollie Carter died April 6, 1940, leaving a holographic will dated January 2, 1933. Her heirs at law included Agnes Carter, two sons, Thomas 0. Carter and John J. Carter, and a grandson, William Arthur Carter, Jr., appellant, the minor son of William Arthur Carter, Sr., a predeceased son of the testatrix who died after the making of her will.

The will designated by name the daughter and the three sons, but contained no direct reference to appellant grand

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child. It contained specific devises and bequests to the daughter and provided: “My other property I possess I give and bequeath to my three sons.” Thereafter appear bequests of three hundred dollars each to two clergymen for religious purposes. Finally, one hundred dollars was directed to be paid to any member of the family who might contest the will. The record does not disclose what “other property I possess” may have existed at the time of the execution of the will. At the time of the testatrix’s death, however, some seven years later, the estate comprised only the real and personal property devised and bequeathed to the daughter. The court found “that there is no other property in said estate.” Nevertheless, the two surviving sons and the grandson, appellant herein, received under the decree of distribution certain real property assigned them by the daughter; likewise each clergyman received the specific sum designated in the will.

It is the contention of appellant that the portions of the decree of distribution appealed from deny to him the share of his grandmother’s estate to which, under the provisions of section 90 of the Probate Code, he was entitled as a pretermitted heir. This section provides: “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.” Section 91 of the Probate Code sets forth the manner and means by which a pretermitted heir may obtain an apportionment of the estate. Section 92 provides: “If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitue another in his place; except that when any estate is devised or bequeathed to any kindred of the testator, and the devisee or legatee dies before the testator, leaving lineal descendents, or is dead at the time the will is executed, but leaves lineal descendents surviving the testator, such descendents take the estate so