Estate of Townsend

California Court of Appeal Oct 8, 1963 No. Civ. 27038Published

Before: Burke

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Holding. The court held that a testator's failure to include a residuary clause in a will constitutes an omission rather than an ambiguity, and therefore extrinsic evidence of the testator's intent to include such a provision is inadmissible.

Issues

Whether the term 'personal effects' in a will includes the residue of an estate containing real property.
Whether extrinsic evidence of a scrivener's instructions is admissible to correct a testamentary omission.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The defect in the will, if in fact it be a defect, is one of omission and not of ambiguity and under the foregoing authorities the testimony of the attorney was properly excluded and partial intestacy must be held to result.”

“A mistake of omission cannot be corrected.”

BURKE, P. J.

Mildred Townsend died in 1961 and her will was admitted to probate. She bequeathed monies and personal property to several friends and relatives, disinheriting some relatives by noninclusion and by general reference. She provided for a trust for Don Q. Wade, son of her niece Violet Wade, with a contingent remainder to Violet should the son predecease his mother.

In paragraph 14 of the will she declared:

“I have intentionally failed to make provision for my other living relatives in this Will for the reason that I have done for them already as much as I feel I desire to. I have also limited the share of my nieces and nephews as set forth in Paragraph Seventh above, for the reason that they are not close to me, nor do I have much, if any, contact with them.

I have purposely provided as I have for my

niece, Violet Wade, for the reason that she has been close to me and has cared for me over a period of time and has never requested any favors or preference, and has in fact heretofore refused any favors from me. ’ ’ (Italics added.)

Despite the italicized language the only bequest to her niece was contained in paragraph “Sixth” of the will, which followed a series of specific bequests, and read: “I give, devise and bequeath all of the balance of furniture, linens, dishes and personal effects of which I may die possessed to my niece, Violet Wade.”

No other residuary clause was contained in the will. The appraised value of decedent’s furniture, linens, dishes and personal effects of the same order is $400. Violet Wade contends the will should be interpreted to leave the residue of the estate to her.

[27]

petition to determine heirship was filed

the First Western Bank and Trust Company, as executor of the will, and a statement of claim was filed by the brother and sister of decedent asserting that partial intestacy resulted by omission of any residuary clause. The contentions of Violet Wade were rejected and the residue of the estate was held to be distributable according to the laws of intestate succession. From such judgment Violet Wade appeals.

Estate of Townsend

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BURKE, P. J.

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