Woerner v. Bernhardt

JONES, J.

pro tern.—To a petition for a partial distribution by named legatees under the will of Betta Doell, appellant filed his written opposition. The legatees seeking distribution are nieces and nephews of the decedent and named beneficiaries under the will. Appellant is the only child of a deceased son and is devised nothing. In his opposition to the petition for partial distribution he alleges that it does not appear from the will that the omission to provide for him was intentional. He claims that for this reason he is entitled to have the whole estate distributed to him—he being the only lineal descendant of Mrs. Doell. (Prob. Code § 90.)

[38]

The trial court found, however, that the omission was intentional, and decreed partial distribution to the petitioning legatees. It is from this decree that he has appealed.

That portion of the will pertinent to the principal question presented on appeal is: “Except as otherwise provided in this will, I have intentionally, with full knowledge, omitted to provide for my heirs and the heirs of my predeceased husband.” Appellant contends that this language does not identify him and he was not, therefore, intentionally disinherited.

In

Estate of Hassell,

168 Cal. 287, 289 [142 P. 838], the court said, “At law, while the word (heirs) may include others, it always includes the children of a decedent.” And by the same token it necessarily includes the children of a deceased child. It was argued in

Estate of Lombard,

16 Cal.App.2d 526, 528 [60 P.2d 1000], that the language “intentionally and with full knowledge omitted to provide for my heirs living at the time of my demise,” should not be construed to mean and to include the testator’s children. The court rejected this contention upon the authority of

Estate of Eassel, supra,

stating “We cannot put such a strained construction upon the word ‘heirs.’ ”

When used in a will to designate a class of persons for whom no provision is made the term “heirs” includes children as well as those who take by right of representation. Here the will of the testatrix clearly and unequivocally states that, “I have intentionally, and with full knowledge, omitted to provide for my heirs” not otherwise mentioned. This statement in the will does not leave any room for the trial court to draw any conclusion other than that the testatrix had her grandson in mind at the time she made the will and intended to give him nothing. Her reason for not leaving any property to him is not material to the proceeding.