Estate of McClure

214 Cal.App.2d 590 (1963) Estate of PORTIA E. McCLURE, Deceased. JOAN FARMER, Claimant and Appellant,

v.

ROBERT McCLATCHEY et al., Claimants and Respondents.

Civ. No. 6958. California Court of Appeals. Fourth Dist.

Mar. 28, 1963. C. A. Broderick, Chapman & Sprague and Roy E. Chapman for Claimant and Appellant.

W. A. Seavey, Lightner & Hilmen, Brooks Crabtree and McInnis, Focht & Fitzgerald for Claimants and Respondents. [592]

COUGHLIN, J.

The issue on this appeal is whether a granddaughter is a pretermitted heir of her grandmother's estate or was excluded from participation therein by the terms of a purported disinheritance clause in the grandmother's will.

Joan Farmer, who is the appellant herein, is the daughter of a deceased son of Portia E. McClure; was not named as a devisee or legatee in the latter's will; and instituted heirship proceedings to adjudicate her claim as an alleged pretermitted heir under the provisions of section 90 of the Probate Code. Article Eighteenth of the subject will provided as follows:

"Should any person contest this will and claim to be an heir to any part of my estate and be able to establish such fact, then in that event I give such person or persons the sum of ONE DOLLAR ($1.00) each and the balance of my estate to which such person or persons might be entitled shall pass in accordance with the terms of this will."

The trial court found that, by the foregoing language, Portia E. McClure testamentarily expressed her intention to omit her granddaughter, Joan Farmer, as a person entitled to inherit from her estate. A decree was entered accordingly. Joan Farmer appeals from that decree claiming that the aforesaid finding was erroneous as a matter of law. The respondents on appeal are the beneficiaries specifically named in the subject will.

In support of her claim of error, appellant contends that it does not appear from Article Eighteenth, when considered in the light of other expressions in the subject will, that her grandmother had her in mind when the will was made; also, that the provisions of this article apply only to persons contesting the decedent's will; that a person who claims an interest in a testamentary estate as a pretermitted heir is not contesting the will in that estate; thus she is not a member of the class designated in Article Eighteenth; and, therefore, she is not disinherited by the provisions in question.