Freyer v. San Francisco Protestant Orphanage Society

California Court of Appeal Jun 17, 1931 No. Docket No. 7895.Published

Before: Spence

AI Brief

AI-generated · verify before citing

Holding. The court held that a decree distributing an estate to seven orphan asylums based on a will naming a singular "Offens home" was improper because the testator's intent could not be ascertained from the will alone and the decree relied on speculation.

Issues

Whether a latent ambiguity in a will naming a singular beneficiary can be resolved by distributing the estate to multiple entities without extrinsic evidence of the testator's intent.
Whether a court may distribute an estate to a class of institutions when the will specifies a singular institution without evidence of the testator's intent.

Disposition. reversed

Quotations verified verbatim against the opinion

“the language used is insufficient to support a decree in favor of all orphans’ homes or in favor of any particular orphans’ home in the absence of some evidence other than the will itself to show what the testator’s intention was.”

“Courts are not permitted, in order to avoid a conclusion of intestacy, to adopt a construction based on conjecture as to what the testator may have intended, although not expressed.”

SPENCE, J.

Appellants are the sister and the several nephews and nieces of the deceased. Respondents are seven orphan asylums of the city and county of San Francisco. This appeal is taken upon a bill of exceptions from that portion of the decree of final distribution which distributed the entire estate in equal shares to the seven respondents.

[64]

The olographic will of the deceased, which was duly admitted to probate, read as follows:

“When I am dead I wont everyting to go to Offens home of San Francisco. You find everyting in box 3608 Humbolt Bank. This is my last Will.

“March 20, 1927. Edward J. A. Zilke.”

Upon the hearing of the petition for distribution it was stipulated that appellants are the heirs at law and next of kin of the deceased and “that the following organizations are orphan asylums and that said orphan asylums and each of them are situate in the City and County of San Francisco— (naming the seven respondents)”. No further evidence on the subject was offered and the decree was entered as above indicated. In the briefs it is assumed by the parties that there is no institution, association, or corporation bearing the name “Offens home of San-Franeisco” or “Orphans’ Home of San Francisco,” and it is further assumed that the seven respondents conduct all of the orphans’ homes in San Francisco. We find no evidence in the record to justify these assumptions, but even if these facts be conceded, we are still of the opinion that the decree must be reversed.

If it appeared that there was no institution bearing the name used in the will, and that there were seven institutions conducted as orphans’ homes in San Francisco, a latent ambiguity arose, which ambiguity might have been removed by other evidence. In

Taylor

McCowen,

154 Cal. 798 [99 Pac. 351], the court at page 802 quoted with approval the following language from

Patch

Freyer v. San Francisco Protestant Orphanage Society

AI Brief

SPENCE, J.

More from California Court of Appeal

Related research

AI Brief