Hoover v. Bank of America National Trust & Savings Ass'n

California Court of Appeal Sep 24, 1936 No. Civ. 10247Published

Before: Spence

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Holding. The court held that the testator's use of the phrase "heirs then living" in a codicil, when read in context, indicated an intent to exclude the appellant from the remainder interest, rather than using the term "heirs" in its technical sense.

Issues

Whether the term "heirs" in the codicil should be construed as of the time of the testator's death or as of the time of the life tenant's death.
Whether the appellant, as the sole heir, was entitled to the remainder interest and the termination of the trust.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The testator nevertheless used the plural “heirs” and modified that word by the words “then living” referring to a time in the future “after the death” of appellant. This clearly indicates that it could not have been intended that the words “heirs then living” should include appellant.”

[530]

SPENCE, J.

This is an appeal by Gertrude Hoover, the daughter of the deceased, from the decree of distribution in the above-entitled estate.

In 1930 the deceased made a will in which certain specific bequests and devises were made to relatives and friends and the entire residue of the estate was left to appellant. About a year and a half later the deceased executed a codicil which read in part as follows:

“Fifth. I wish to modify the clause wherein I gave all the rest and remainder of my estate to my daughter Gertrude Hoover, as follows: In lieu of said provision, I hereby provide as follows: I give and bequeath all the rest, residue and remainder of my estate of every kind and nature to the Bank of America National Trust & Savings Association, in trust however, for the following uses and purposes: To handle and manage the same with full power to sell, hypothecate and do everything in regard thereto as if I myself were handling said property; to invest and reinvest all of the

corpus

of said trust and to pay the net income thereof to my daughter, Gertrude Hoover during her life.

After the death, of my daughter, Gertrude Hoover, all of said property to go to my heirs then living, in accordance with the present law of succession of the State of California.

“I declare that although my daughter, Gertrude Hoover, in the last month has annoyed me, cursed me, threatened me that she would not bury my body in the crypt which I purchased therefor, filed an injunction suit against me and a petition to be appointed my guardian, that I am not doing this to punish her, but have come to the conclusion that on account of her character and disposition and lack of business ability that this trust is for her best interest. ’ ’ (Italics ours.)

At the time of executing said codicil and at the time of his death, the deceased had no living spouse and had no issue other than appellant Gertrude Hoover. The decree of distribution followed closely the wording of the codicil as above set forth.

Appellant’s claims are based upon her construction of the italicized portion of the codicil. She contends that the word “heirs” should be given its technical meaning and that the “heirs” of the deceased should be determined as of

Hoover v. Bank of America National Trust & Savings Ass'n

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SPENCE, J.

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