SHAW, J., Dissenting.
I dissent.
In my opinion certain well-established rules of interpretation applying especially to wills, when considered in connection with this will, give it a meaning different from that given to it by the majority opinion.
The primary object of a court, when an ambiguous will is before it, must be to ascertain, as far as possible from its language, the intention of the testator. (Civ. Code, sec. 1318.) All its parts are to be construed in relation to each other, and só as, if possible, to form one consistent whole. ‘‘ Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.’’ (Civ. Code, sec. 1326.) Words which are irreconcilable with the general context may be rejected, whatever the local position which they happen to occupy. (1 Jarman, [445].) Where it is clear on the face of a will that the testator’s meaning is not completely expressed by the words used, and it is also clear what are the words which he has omitted, those words may be supplied in order to effectuate the intention, as collected from the context. (1 Jarman, *p. 451; 1 Redfield on Wills, 454.) Many instances of this rule are given by Mr. Jarman at page
[435]
[455]. Where an expression, otherwise senseless or contradictory, -can be rendered consistent with the context by being transposed, such transposition is warranted. (Id., [466]; 1 Redfield on Wills, 467.) Punctuation may be disregarded if a change in that respect will render its meaning more obvious. (1 Redfield on Wills, 434.) In construing wills drawn by persons unskilled in the art “it is the duty of the courts to spell out the probable relative importance of the different provisions, and how far one was intended to yield to another, when it becomes impracticable to carry all into effect. (1 Redfield on Wills, 452.)
A striking instance of the liberality indulged in these particulars in considering holographic wills drawn by illiterate persons is found in the decision of this court in
Estate of Stratton,
112 Cal. 517, [44 Pac. 1028], The will in that case, after a number of specific gifts, concluded as follows:
“Common Beadsteads with Feather Bead and all the rest of the Furniture and all Money in what Ever Shape
he
will have full controle after Expenses is Paid on my sickness and death.
“Mbs. Georgiana Hanham Stratton.
“My Husband.
“Thomas Stratton.”
It was held that the will could be made clear by transposing the words “my husband Thomas Stratton,” from the place below the signature of the testatrix to a place immediately after the word “he,” and this being done, it was construed to make a gift to the husband of the residue of the estate.
Coming now to the will here involved, we repeat it in full to facilitate the discussion.
“San Francisco, October 5, 1915.
“I am writing these lines in case I should meet with an accident or in any other way die then it is my wish if my brother Hans Peter Nelson is alive send this letter to him. Should he be dead then it is my wish that my brother’s daughter Emma and my dead sister Bena’s daughter who lives in Chicago, her name is Agnes, shall together sell all my property and divide equally between my dead sister Anna’s children by name Engeborg, Anna, Alfrida, and Otto, living in Copenhagen and Nakskov. It is my wish that my niece Emma Nelson receive $500. extra for her taking care of me.
[436]
It is also my wish that my friend Mrs. Rosa Friis shall be given $500.
“Mes. Jennie Hoytema,
“94 Sanchez Street.
“P. S.—My safe deposit box is in the Humboldt Savings Bank No. 295.”
The opening sentence disclosed the testamentary intent. The mind of the writer then turned to the selection of a person to carry out her intent, to act as executor. It may readily be supposed that her brother would be preferred for that office, and, accordingly, she named him, saying, “send this letter to him” if he is alive. In her ignorance, she evidently believed that if the letter were placed in his hands he would be thereby authorized to dispose of the property as the will directed. But it occurred to her that he might be dead and in that event a substitute must be designated. For that purpose she chose two nieces, Emma, -daughter of the brother, and Agnes Edwardson, daughter of her sister. She then came to,, the point of stating what was to be done with the property. The instructions to those to whom the office of executor should fall were “to sell all my property and divide equally between my dead sister Anna’s children, by name Engeborg, Anna, Alfrida, and Otto, living in Copenhagen and Nakskov. ’ ’ These words are certain and their effect is absolutely clear. They cannot be given any other meaning than that conveyed by the ordinary sense of the words, unless a -clear intention to use them in some other sense can be collected from the context or from extrinsic facts. (Civ. Code, sec. 1324.) No extrinsic facts appear, and the context furnishes no cause for giving them other than their ordinary import. The use of the word “extra” in the gift of five hundred dollars to Emma is easily explained. The gift shows on its face that Einma had been taking care of the testatrix. Apparently Emma was the only relative she had in California. Her brother lived in Idaho, and the other heirs in Illinois and Denmark. It is to be supposed that Emma had already received something for this service and the intent evidently was, as the words indicate, to give her an additional compensation therefor. To give it the effect of qualifying or explaining the meaning of the preceding disposition in any manner, would violate the rule that “a clear and distinct devise or bequest cannot be affected” by any other words “not equally clear and distinct.”
[437]
I think the will on its face clearly gives the residue of the estate to the children of Anna, the deceased sister of the testatrix, and that it left nothing undisposed of to go to the other heirs.
Lawlor, 3"., and Olney, 3"., concurred.
Rehearing denied.