Maxwell v. Maxwell

California Court of Appeal Mar 19, 1958 No. Civ. 5617Published

Before: Barnard

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Holding. The court held that the testator's will did not create a gift by implication to the children of the second marriage because the will failed to clearly express an intent to provide for them in the event the wife predeceased the testator. Consequently, the remainder of the estate, excluding the widow's share, passed via the laws of intestate succession.

Issues

Whether a gift by implication to the children of the second marriage was created when the testator's wife predeceased him.
Whether the testator's will, which only provided for the children of the second marriage in the event of a simultaneous death, should be construed to cover the contingency of the wife predeceasing the testator.

Disposition. reversed

Quotations verified verbatim against the opinion

“a gift will be raised by necessary implication where a reading of the entire instrument produces a conviction that a gift was intended.”

“The probability of an intention to make the gift implied must appear to be so strong that an intention contrary to that imputed to the testator cannot be supposed to have existed in his mind.”

“The rule of construction that the intent of the testator must be carried out if possible does not authorize courts to make a new will to conform to what they may think the testator intended.”

BARNARD, P. J.

The testator died on January 20, 1955, leaving a will executed on March 27, 1928. He had been married three times and he was survived by a son and daughter of the first marriage, a son and daughter of the second marriage, and a widow Mary Lenore Maxwell whom he married on March 13, 1948, his second wife, Eva L. Maxwell, having previously died. When the will was made the children of the first marriage were 21 years and 19 years old, respectively, and the children of the second marriage were 4 years and 2 years old, respectively. At the time of the testator’s

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death all four children were over 30 years of age, except Louisa who was 29 and she was then Louisa Kinnebrew.

In his will the testator declares that this is his last will and that he revokes all other wills made by him; that he is married to Eva L. Maxwell and they are the blood parents of one daughter named Louisa and one son named Adrian, Jr.; that he is the father of another son and another daughter by a previous marriage named Kermit and Ellen, who are “now about grown up"; and that he gives $5.00 to Kermit and $5.00 to Ellen. The Fifth paragraph of his will reads as follows:

“I give, devise and bequeath all the remainder of my estate, both real and personal, of whatsoever kind and whereever situated, including the proceeds of my life insurance, to my wife, Eva L. Maxwell, and in the event of her death occuring at the same time as my own, then in that event equally to the two children of myself and wife, Louise Newton Maxwell and Adrian I. Maxwell, Jr.

“In thus leaving the bulk of my estate to my present wife and our children, it is done thru no want of paternal affection, but with the conviction that it is best, because of the fact that my older children are grown up and self-supporting."

In the Sixth paragraph he appoints his wife, Eva L. Maxwell, as executrix to serve without bond and with authority to sell, lease or mortgage any part of the estate. The Seventh paragraph reads:

“In the event my wife’s death occurs at the same time as my own or before my estate is settled thereafter, then Zn that event I appoint the Security Bank and Trust Co., Taft,- Cal., to act as Executor in accordance with law. ’ ’

Maxwell v. Maxwell

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BARNARD, P. J.

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