In Re Estate of Sullivan

TYLER, P. J.

This is an appeal from a first and final account and order of final distribution. The sole question presented is the construction to be given the terms of a will. The decedent executed his will October 25, 1928. Thereafter, on September 9, 1930, Ralph Timothy Sullivan was born. The decedent, after making provision for a nephew and niece, devised the residue of his estate, share and share alike, among four kindred, one of whom was appellant’s father Ralph Timothy Sullivan. The father died December 27, 1929, and deceased testator on April 21, 1937.

It was contended by the administratrix at the hearing on distribution that section 92 of the Probate Code would not apply to permit the appellant to succeed to the share of the estate his father would have received had he survived the testator. It was contended by the appellant that section 92 would apply, thereby entitling him to receive his father’s devise by right of representation. The trial court concluded that the devise in question was one to a class and ordered distribution to the surviving members as residual devisees. The pertinent portion of the will in question reads as follows:

“FIFTH: All the rest, residue and remainder of my property real and personal, and wheresoever situate, I give, devise and bequeath, share and share alike to the following: My sister, ANGELA MAY PENDERGAST, formerly ANGELA MAY SULLIVAN; my sister, CLAIRE JOSEPHINE HARDING, formerly CLAIRE JOSEPHINE SULLIVAN; my brother, VINCENT MATTHEW SULLIVAN, and my brother, RALPH TIMOTHY SULLIVAN.

“SIXTH: I have intentionally omitted by brother, ARTHUR J. SULLIVAN, for reasons which he himself will understand; I have intentionally omitted all my heirs who

[529]

are not particularly mentioned herein, and I hereby generally and specifically disinherit each, any and all persons who may make any claim to any portion of my estate, and to such person or persons I hereby give and bequeath the sum of One Dollar ($1.00) and no more, in lieu of any other share or interest in my estate.”

Section 92 of the Probate Code provides as follows: “If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute 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 descendants take the estate so given by the will in the same maimer as the devisee or legatee would have done had he survived the testator.”