Estate of Hisey

California Court of Appeal Jun 26, 1930 No. Docket No. 7383.Published

Before: Thompson

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Holding. The court held that the testator's will did not dispose of the proceeds from the sale of community real property located in Texas, as the language of the will limited the disposition to property subject to California law. Consequently, the probate court's order distributing those proceeds to the respondent was correct.

Issues

Whether the testator's will disposed of community real property located in Texas.
Whether the court should construe the will to avoid partial intestacy by expanding the scope of the testator's language.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We are not permitted nor inclined, however, in order to avoid a conclusion of partial intestacy to adopt a construction based on conjecture”

“The rule is so well established and understood that the laws of the state where realty is located, or the lex rei sitae, govern the transmission of land within the state”

“we cannot by some legerdemain or “black art” expand the language used by the testator to include that which it obviously does not include.”

THOMPSON (IRA F.), J.

On July 20, 1927, the last will and testament of Allen H. Hisey was admitted to probate, and the petitioners were appointed executor and executrix thereof. Subsequently the respondent filed her petition for the distribution to her of certain moneys which had come into the hands of the executors from the sale of timber growing on community real property in the state of Texas. The probate court made its order distributing the proceeds of the sale to her, and the devisees named in the will other than the respondent, having contested the petition in the court below, are here upon an appeal from that judgment.

The question involves a construction of the last will and testament, the governing portions of which are as follows: “Third: I desire that my wife shall take a one-half (%) of the community property to which she is entitled under the laws of the State of California and that the remaining one-half (%) over which I have testamentary disposition be distributed as follows: One-sixth to my wife, Minnie Myers Hisey,” (here follows three devises of 5/18 each to a brother and two sisters, the appellants). “Fifth: I hereby nominate, constitute and appoint my wife, Minnie Myers Hisey, and Pacific-Southwest Trust and Savings Bank, a corporation, of Los Angeles, California, as Executrix and Executor of this, my last Will and Testament, and

[680]

I hereby expressly direct that no bond or other security shall be required of said Executrix, or Executor in any jurisdiction to secure the faithful performance of their respective duties.”

The appellants direct our attention specifically to the clause “in any jurisdiction” and argue that when it is considered in conjunction with the presumption against intestacy which ought to apply, that it indicates an intention on the part of the testator to dispose of all of his estate. This is the sole ground of appeal, it being conceded by them that if the will does not dispose of the Texas property the order was properly made.

We are not permitted nor inclined, however, in order to avoid a conclusion of partial intestacy to adopt a construction based on conjecture

(Estate of Hoytema,

180 Cal. 430 [181 Pac. 645], nor to supply an omission by rewriting the will. As was said in

Estate of Hisey

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THOMPSON (IRA F.), J.

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