SHAW, J., Dissenting.
I dissent.
The case of the responden^ rests upon the rule that the republication of a will by a codicil, whether express or implied, carries forward the language and effect of the original will to the date of the codicil, so that its effect will depend upon the conditions existing at that time; and upon the further proposition that a testamentary provision for a person who is dead at the time it is made is void. These propositions are well established, but I do not think they determine the case.
The respondent contends that the rule that the reaffirmation of a will by a codicil carries forward its effect to the date of the codicil is rigid and unvarying. This is not the effect of the authorities. The rule had its origin in England at a time when, under the ecclesiastical law, property acquired after the execution of a will, and before the death of the testator, did not pass by the will, and the principal effect of the rule
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was to make the general dispositions of the will include all property acquired up to the date of the codicil. All the text-writers remark that since the act of parliament providing that a will shall speak at the death of the testator, and, so far as its terms are sufficient therefor, disposes of all property held by the testator at his death, this rule has been of less importance, and is much less frequently invoked.
•The two propositions, that the execution of a codicil does not revive, in favor of the children of the legatee, a legacy which had lapsed by the death of the legatee after the making of the will and before the execution of the codicil, and that, the codicil does not renew a legacy which, in the interval, had been adeemed or satisfied by the testator, are as well established as the rule carrying forward the language of the will to the date of the codicil. The principle on which these two propositions rest, especially that relating to ademption, is that the mere republication of a will by means of a codicil does not always change the legal effect of the will as it exists at the time the codicil is executed. If events occurring after its execution have removed one of the objects of the will, or canceled some of its provisions, and thereby changed its leg'al effect, the subsequent execution of the codicil does not, in the absence of express words, change the situation. If a legacy has lapsed, it remains lapsed; if it has been adeemed, it remains satisfied and extinguished. In the latter case, if the rule that the codicil carries forward the language of the will to the date of the codicil were applied, the effect would be to renew the legacy as given by the original will. But, as above stated, the contrary is held, and the legal effect of the will, coupled with the subsequent ademption, remains unaffected by the* codicil. (1 Jarman on Wills, [158];
Powys
v.
Mansfield,
3 Mylne & C. 376, [40 Eng. Rep. 971].)
If we apply the same principle to the present case, we will find that it upholds the present will as it was before the codicil was made, with respect to the legacy to the daughter of the testatrix, who was the mother of the respondent. The legatee, being a daughter, and the respondent being her surviving child, the legacy had not lapsed. (See Civ. Code, sec. 1310.) The rule that a lapsed legacy is not revived is therefore not even technically applicable. By force of section 1310 this legacy had not lapsed, but had been merely transferred at the death of the legatee, to her surviving child. It was
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operative as a provision in his favor at the time the codicil was executed. Consequently, the will then made a valid disposition in favor of that child. The testatrix must be presumed to have known the law and to have made the codicil with that knowledge. She knew of the death of her daughter. Therefore, at the time she made the codicil she must be presumed to have known that her pre-existing will made a valid provision for this child, and must likewise be presumed to have reaffirmed it with knowledge of its effect in that particular, and to have intended thereby to continue that provision in existence.
Section 1307 of the Civil Code, relating to pretermitted heirs, applies only where a testator “omits to provide in his will for any of his children, or for the issue of any deceased child.” Here, as we have seen, there was a provision in the will, as reaffirmed, for the child, Howard Leonard; a provision which the testatrix is presumed to have had in mind in making the codicil. There was no omission to provide for him, and consequently no basis for the claim that he is a pretermitted heir.
All of these rules are but applications of the paramount rule that the courts will always, if possible, ascertain the intent of the testator and will carry out that intent so far as it is lawful. A republication of the will at a later date implies that the testator intended it to be operative as of that date, so far as its language would make it so, and so far as the law permitted; therefore, the courts so hold. If a legacy was adeemed, a subsequent republication would not, of itself, carry any implication of an intent to give it again to the same person. Nothing but express words would do that. Hence the courts hold that such adeemed legacy is not renewed by. a codicil. So, by like reasoning, where a legacy is given to a relation who afterward dies, leaving a surviving child to whom the legacy would pass by force of the law, a subsequent republication raises no inference of an intent to revoke the provision thus remaining operative, and, accordingly, the courts should infer an intent to leave it in force. (See
Estate of McCauley,
138 Cal. 435, [71 Pac. 512].)
Sloss, J., concurred.