Estate of Goetz

KERRIGAN, J.

This is an appeal from an order denying petitions for partial distribution of the above-named estate. Joseph Goetz by his last will, executed May 11, 1904, bequeathed to his nephew Jules Lesage the sum of $30,000. Toward the end of that year Jules Lesage died. Three years later the testator died. The appellants are children of Jules Lesage and the respondents are the executors of the will and certain beneficiaries thereunder.

The provisions of the will involved in this appeal read as follows:

“Third: I give and*bequeath to Jules Lesage my nephew who resides in the city of Mulhausen Alsace Germany the sum of Thirty thousand dollars ($30,000).”

“Twelfth: and devise so bequeathed by me should die, prior to my death the legacies, to them mentioned in this will shall lapse, and such legacies shall form a part of my residuring estate. ’ ’

At the time of the execution of the will and at the time of the death of Jules Lesage, section 1310 of the Civil Code provided that a devise to a relative of the testator, in case of the death of the devisee before that of the testator, should be taken by the lineal descendants of such devisee; but the section was silent in the case of a legacy under the same conditions, and consequently, following the general rule of law, such legacy lapsed.

(Estate of Ross,

140 Cal. 282, [73 Pac. 976].) Two years before the testator’s death this section was amended so as to prevent the lapsing of such legacies, and it now reads as follows (the portion added by the amendment being indicated by italics):

“When any estate is devised

or bequeathed

to any child, or other relation of the testator, and the devisee

or legatee

dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner

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as the devisee