Mockbee v. Dunn

NOURSE, P. J.

In a proceeding to determine heirship the four grandchildren of the decedent had a favorable decree from which two nephews have prosecuted the appeal. There is no dispute in the facts. The sole question presented is the interpretation of the third and seventh clauses of the will

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of the testatrix. The third clause reads: “I declare that it is my intention which I have formed after careful consideration of excluding from share in my estate any children, grandchildren, or other descendants of me or of my deceased husband, J. T. Dunn, or any claiming to be such, except as I have herein expressly provided. ’ ’

The seventh clause reads: “I give, devise, and bequeath to my friend, Jennie A. Scott, wife of Walter A. Scott of San Francisco, California, all the rest and residue of my estate of whatsoever kind and character, or wheresoever situate, remaining after the payment of all of my just debts, expenses of last illness, funeral, burial, and administration, and after the fulfillment of the foregoing specific bequests and devises.”

Jennie A. Scott, the devisee under the seventh clause, predeceased the testatrix. The residue of the estate was therefore undisposed of by the will. The two nephew appellants contend that because of the disinherison of the grandchildren under paragraph three they, the nephews, became heirs by “implication” of the residue. The real question involved is whether when a testatrix expressly excludes known heirs from participation in her estate she may thereby bar them from their statutory right to succeed to a portion of the estate undisposed of by the will. The answer is in the negative. If one leaves a part of his estate undisposed of by his will he will be presumed to have known that such portion will be distributed under the statutory rules of succession.

The will here was carefully prepared and designed to dispose of the entire estate. The death of Jennie Scott left the residue undisposed of. That legacy therefore lapsed under section 92 of the Probate Code. That being so the testatrix is deemed to have died intestate as to that portion of the estate which under all our decisions goes to the heirs at law.

(Estate of Kunkler,