Estate of Begley

California Court of Appeal May 27, 1988 No. A039727Published

Before: King

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Holding. The court held that a devise to siblings who predeceased the testator without issue lapses and must be distributed under Probate Code section 6148 to the other devisees in proportion to their interests, rather than under the antilapse statute. Additionally, a devise to the 'heirs' of a predeceased sibling must be distributed equally among the nearest generation of living issue pursuant to Probate Code section 240.

Issues

Whether a devise to siblings who predeceased the testator without issue is governed by the antilapse statute (Probate Code section 6147) or the lapse statute (Probate Code section 6148).
Whether a devise to the 'heirs' of a predeceased sibling should be distributed per stirpes or equally among the nearest generation of living issue.

Disposition. reversed

Quotations verified verbatim against the opinion

“a devise to two siblings lapsed because they predeceased the testator and left no issue, and their shares passed to the other devisees in proportion to those devisees' other interests in the estate.”

“The applicable statute is Probate Code section 6148, which governs lapsed devises”

“the four grandchildren should have shared this interest equally.”

201 Cal.App.3d 791 (1988) 247 Cal. Rptr. 632 Estate of ETHEL IONE BEGLEY, Deceased.

LLOYD CRIPPS, as Administrator, etc., Petitioner and Respondent,

CLAUDIA LARSEN, Claimant and Appellant; MARGORIE McKINLEY et al., Claimants and Respondents.

Docket No. A039727. Court of Appeals of California, First District, Division Five.

May 27, 1988. [794] COUNSEL

J. Ronald Hershberger and Thoits, Love, Hershberger & McLean for Claimant and Appellant.

Frank Shaw-Bacik and Rawles, Hinkle, Carter, Behnke & Oglesby for Claimants and Respondents.

No appearance for Petitioner and Respondent.

OPINION

KING, J.

In this case we hold that a devise to two siblings lapsed because they predeceased the testator and left no issue, and their shares passed to the other devisees in proportion to those devisees' other interests in the estate. Claudia Larsen appeals from an order determining entitlement to distribution of the estate of Ethel Ione Begley. We reverse.

Begley died in 1985. She had executed a holographic will in 1960. The will stated, "All of my real estate and personal property is to sold and be divided share and share alike between my two Sisters Lulu L Bolton, Lena S Ford, and one Brother John H. Dickey, all of Willits, California, and the Heirs of my late Sister Viola Davis." (Sic.)

All of these intended beneficiaries predeceased Begley. Lulu and John died without issue. Lena had eleven children; nine of her children survived Begley, and four issue of one deceased child and two issue of the other deceased child survived Begley. Viola had three children, all of whom predeceased Begley; four issue of these children survived Begley, including two from one child (Larsen and a sister) and one each from the other two children.

The will was admitted to probate on October 11, 1985, and one of Viola's grandchildren, Lloyd Cripps, was appointed administrator with will annexed. Cripps subsequently filed a petition for determination of entitlement to distribution of the estate. Three of Lena's children and one of her grandchildren filed objections to the petition. The court ruled as follows:

Estate of Begley

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OPINION

KING, J.

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