Martin v. Keller

BARNARD, P. J.

This is an appeal from an order and decree construing the meaning of the dispositive provision of an holographic will.

The deceased, employed for many years as a stationary engineer, was a man with little formal education. He was 64 years old at the time of his death. In his will, dated August 4, 1941, he declared that he was not married and that he had no brothers or sisters, and he appointed Luella Martin “as Executor. ’ ’ The provision of the will which is here in question reads as follows;

‘1 Fourth: I give, devise and bequeath all my property, real and personal, wherever situated, to be equeally divided between Luella Martin at Perris California. And Stanley Keller, Roy C. Keller and James L. Keller. All three live at Willowbrook California”

The will was admitted to probate, Luella Martin being appointed as executrix on July 30, 1947. On April 8, 1948, she filed a petition alleging that she was unable to close the estate because she was uncertain whether it should be distributed one-half to herself and one-sixth to each of the other named beneficiaries, or one-fourth to herself and one-fourth to each of the other three. It was further alleged that she believed the clear intent of the decedent, as disclosed by the will, is that one-half should be distributed to her and one-sixth to the other devisees, respectively, and the court was asked to determine the manner in which the estate should be distributed. The other three beneficiaries filed an objection to this interpretation of the will, and prayed that it be construed as requiring an equal distribution to the four persons named, one-fourth to each. After a hearing the court found in favor of the three objectors, construed the will accordingly, and entered an order decreeing that by the terms of the will the testator intended

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that each of the four parties should receive one-fourth of his estate, and ordering that the property should be so distributed. From this order the executrix has appealed.

The appellant first contends that the will, on its face, indicates that the testator intended one-half of his estate to pass to her. It is argued that the use of the word “between” instead of “among” indicates an intention to divide the estate into two parts only; that the use of a period following the first “California” indicates an intention to make a definite cleavage in the distribution of the estate as between Luella Martin and a separate class consisting of the three Kellers; that the use of a capital A in the word “And” following that period, coupled with the use of the period, fortifies this conclusion; that the absence of the word “and” between “Stanly Keller” and “Roy C. Keller,” from a grammatical standpoint, indicates an intention to connect the three into one group; that had the testator intended to put all four in an equal status he would have inserted an “and” at this point and omitted the period and the capital A; that he again refers to the three boys as one group when he says “All three live at Willowbrook California”; and that the fact that he named Luella Martin as executrix indicates that he believed she was the person most interested in seeing the will properly probated.