Estate of Sessions

SHAW, J.

The appeal herein is from an order distributing the estate of the testatrix, Ellen Sessions, to her legal heirs, instead of to the heirs of William E. Jackson, who was named in her will as her residuary legatee.

Ellen Sessions died on August 5, 1913. William E. Jackson, the residuary legatee, died in 1911. He was not akin to the testatrix. The sole question presented for determination is whether the residuary bequest to Jackson lapsed upon his death, or whether it should be given to his heirs because of certain words in the residuary clause which, it is claimed, are words of substitution. With respect to a residuary devisee or legatee who is not a relation of the testator, or who, being a relation, leaves no lineal descendants, section 1343 of the Civil Code provides as follows: “If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place.” The will of Ellen Sessions was executed in 1907, and was duly admitted to probate. The first clause names William E. Jackson as executor of the will. The second clause is as follows:

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“I left my native place when I was quite young, visiting there a couple of times since, but from my relatives I have never had any assistance or consideration. When my husband died in 1894 he left me a draying and trucking business, which was impossible for me to carry on without assistance. I selected one whom I considered to be a good, steady man, namely William E. Jackson, to carry on the business under my direction. He proved all that I expected him to be, steady, attentive, industrious and efficient; the result was that the business which I would have been compelled to dispose of at a loss was carried on successfully and at a profit from the time of the death of my husband until the present time, and out of it I have made a considerable sum and a nice support.

“I have considered that when my time comes to leave this world, as I have no children, or anyone dependent upon me, the best thing for me to do with my property is to give it to those who have been kind to me, and not to a lot of relatives whom I know little of, and have never assisted me in any way.

“I make this preliminary statement so that those who read my will will understand the reasons which induced me to make it the way I have.”