ANGELLOTTI, J., dissenting.
This appeal was first decided in the district court of appeal for the third appellate
[599]
district, where judgment was rendered affirming the order appealed from. Accompanying the judgment was the following opinion prepared by Mr. Justice Burnett:—
“This is an appeal from a decree of partial distribution to one Earl D. White of the estate of Andrew Carothers, deceased.
“Andrew Carothers died on or about the 13th day of December, 1876, and on January 8, 1877, his will was admitted to probate and his son, William P. Carothers, was appointed executor of the estate. By his last will and testament said Andrew Carothers disposed of the real estate herein involved as follows: T also give and bequeath to my wife and William P. Carothers my entire farm with all improvements thereon located in the county of Sacramento, state of California, during the lifetime of my said wife, and at her death said land with all improvements and proceeds thereof vests absolutely in and is at said death the property of said William P. Carothers, that in case said William P. Carothers dies without issue his property herein specified becomes the property of John Thomas Carothers, and at his death goes to Elizabeth Witherspoon.’
“The said wife, Eleanor A. Carothers, died on the 2'4th day of February, 1897. On the 14th day of February, 1898, said William P. Carothers conveyed by a good and sufficient deed to John T. Carothers an undivided one-half interest in said property. The latter, on the 11th of March, 1899, conveyed the same to his wife and she to J. J. Burke, on September 15, 1904. The said Burke died and on the 6th day of September, 1907, in the superior court of the county of Alameda, a decree of distribution was made and entered by which all of the interest of said Burke was distributed to said Earl D. White. On the 31st day of October, 1904, the said Burke had filed in the superior court of Sacramento County his petition for the distribution to him of the undivided one-half interest in this real property belonging to the estate of said Andrew Carothers, deceased. His death occurred before the hearing of said petition and his successor, the said Earl D. White, was regularly substituted, and to the latter the distribution was made.
“The said John Thomas Carothers died testate in the year 1899, without leaving issue, his said surviving widow, Kate A. Carothers, being the sole devisee of his estate.
[600]
“William P. Carothers was never married and never had any issue. He died intestate on June 2, 1902.
“The said petition for distribution was contested by John E. Witherspoon, as administrator with the will annexed of the estate of said Andrew Carothers, deceased, and by John E. Witherspoon, Andrew H. Witherspoon and Emma Wither-spoon, the heirs at law and successors in interest of Elizabeth Witherspoon, a deceased daughter of the said Andrew Carothers, deceased.
“The position of respondent is that the fee, subject only to the life estate of the said Eleanor,-vested in William at the death of the testator and that the provision in reference to the said John Thomas and Elizabeth are substitutionary only, or at least, that at the death of said Eleanor the said William became entitled to the fee simple absolute.
“To the contrary, it is insisted by appellants that the estate of said William P. Carothers was terminated by reason of his death without issue and that therefore the alternative provisions of the will to take effect in case of the happening of the contingency became operative. Hence, the claim of appellants to the fee as heirs of said Elizabeth whose death antedated that of the said William P. Carothers.
“Many questions of law suggested by the language of the will are discussed with great learning by the counsel for both parties. Their investigations have taken a wide range and it would seem that no relevant authority worthy of consideration has escaped attention. We deem it unnecessary, however, to follow the discussion in all its ramifications, as the determination of the controversy really hinges upon the construction of the phrase, ‘dies without issue,’ or rather upon the question whether that contingency is limited to any particular time.
“Respondent’s position is stated as follows: ‘Our contention is that after devising the property absolutely to William P. Carothers, and carving out of it a life estate for his wife, he bethought himself that in case William P. Carothers died in his own lifetime or in the lifetime of his wife there would occur a lapse and so he provided the substitutionary scheme. This is the only way in which the intention of the testator to convey an absolute interest in the property to the first taker can be possibly carried out.’ In support thereof it is sub
[601]
mitted: ‘1. A' devise of testator’s real estate to a person absolutely carries the fee simple absolute. A devise of the proceeds, rents and profits without limit passes the absolute fee. 2. A clear devise or bequest will not be cut down by other expressions or clauses contained in the will which do not with reasonable certainty indicate the intent of the testator to cut it down. The court will, when in doubt, justly prefer that construction of any subsequent clause which will make it consistent with the plainly expressed intention to devise or bequeath an absolute estate. 3. Under section 1336 of the Civil Code words in a will referring to death or survivorship relate to the time of the testator’s death, unless possession is actually postponed, when they must be referred to the time of possession. This is the rule which must govern the construction of Andrew Carothers’ will.’
“As opposed to this view it seems clear to appellants that 'The testator intended that William P. Carothers should have the remainder in the property after the expiration of the life estate, but that he would not have the same absolutely so that he could dispose of it to others. The testator wanted to keep the property in the family. If William had issue the property was to stay in his family. If he had not it was to go to the other children of testator.’ The reasons for this conclusion are summarized as follows: ‘1. The natural meaning of the words “die without issue” is a death at any time. 2. The context of the will shows an intention to keep the property in his family and this can best be done by so construing the words. 3. The surrounding circumstances show that the testator must have intended the words to refer to death at any time. 4. Respondent’s construction is based not on the testator’s intention, but on harsh and technical rules of construction. That even in those states, which have adopted it, it is, according to respondent’s own authority, Underhill, regarded as highly technical, often defeating the intention of the testator, not favored by the courts and departed from on indications however slight.’
“The fact is, however, that there is no difference of opinion —and there can be none—between counsel that the court’s duty is to ascertain if possible from an inspection of the will the intention of the testator and to give effect to such intention if not in contravention of the law and that rules of con
[602]
struction are prescribed to aid and not to embarrass or retard the court in its effort to determine such intention. The rules of construction suggested by counsel, indeed, are provided by the code and the only question can be as to their application to the will in controversy. Section 1318, Civil Code, is: Tn case of uncertainty arising upon the face of a will as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made exclusive of his oral declarations.’ Of course, the surrounding, circumstances are to be resorted to only in case of uncertainty in the language used and for the purpose of ascertaining what the testator intended by the words of the will.
(Estate of Tompkins,
132 Cal. 173, [64 Pac. 268].) The question as to the period of time to which the words ‘die without issue’ should be referred seems to be within the purview of the phrase ‘as to the application of any of its provisions,’ and if it does not appear from the language of the will, in view of other rules of construction, what the testator intended by said contingency, the surrounding circumstances, if of any significance to remove the uncertainty, may be considered and accorded the weight to which they seem to be entitled.
(In re Mackay,
107 Cal. 308, [40 Pac. 558].)
“Again, in section 1322 we have the rule upon which respondent relies with such confidence expressed as follows: ‘A clear and distinct devise or bequest cannot be affected by any reasons assigned, therefor, or any other words not equally clear and distinct or by inference or argument from other parts of the will or by an inaccurate recital of or reference to its contents in another part of the will.’ But appellants contend that equal effect must be given to section 1321, providing that ‘All the parts of a will are to be construed" in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail,’ and also to section 1329 that ‘a devise of real property passes all the estate "of the testator, unless otherwise limited.’
“In
Estate of Marti,
132 Cal. 672, [61 Pac. 966], the importance of said section 1322 is considered and it is therein said: ‘The testator had, by a previous clause in his will, given and bequeathed to his wife “all the other property, real and
[603]
personal, and wherever situated of which I may die possessed.” This gift is explicit and without any words of limitation or qualification. Considered by themselves, they create in her an absolute estate in the property given by him. The authorities all agree that when an absolute estate has been conveyed in one clause of a will, it will not be cut down or limited by subsequent words except such as indicate as clear an intention therefor as was shown by the words creating the estate. Words which merely raise a doubt or suggest an inference will not affect the estate thus conveyed, and any doubt which may be suggested by reason of such subsequent words must be resolved in favor of the estate first conveyed. This rule of construction controls the rule that an interest given in one clause of a will may be qualified or limited by a subsequent clause.’ (Citing cases.)
“There is no room for controversy as to the foregoing unless possibly as to the accuracy of the statement that one rule ‘controls’ the other. The fact seems to be that in the case discussed by Mr. Justice Harrison the rule as to qualification or limitation has no application. Nor is there any inconsistency between the various sections of the code to which we have referred. If A in one part of his will by language free from uncertainty devises real estate to B absolutely, and in a subsequent portion uses language of an uncertain import, but which might be construed as a limitation or qualification of the fee, no one would contend that B is entitled to less than the entire estate in said property. But if A should devise real estate to B and qualify the devise by an equally clear declaration that B should have only a life estate, there would be no hesitation in giving effect to the subsequent limitation. It follows necessarily from the principle that certainty is preferred to uncertainty and that the intention of the testator should be rendered operative as far as possible.
“In the light of the foregoing familiar principles, what estate was devised to the said William P. Carothers ? There is no uncertainty as to the significance of this language: ‘I also give and bequeath to my wife and William P. Carothers my entire farm with all improvements thereon during the lifetime of my said wife, and at her death said land with all improvements and proceeds thereof vests absolutely in and is at said death the property of said William P. Carothers.’ The
[604]
words seem to have been chosen carefully with a view of giving the wife and William a joint life estate and of vesting the fee beyond controversy in the latter. The legal effect of the words used, irrespective of the context, would not be changed as far as vesting the fee is concerned, if ‘absolutely’ and the phrase ‘and is at said death the property of’ had been omitted (sec. 1329, Civ. Code), but they are important as manifesting the intention of the testator to vest without qualification the complete title in William, postponed, however, as to its enjoyment until the death of the wife. An absolute estate is one ‘that is free from all manner of condition or encumbrance.’ It means ‘complete, final, perfect, unconditional, unrestricted.’ (Rap. & L. Law Dictionary.) ‘The ownership of property is absolute when a single person has the absolute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws.’ (Sec. 679, Civ. Code.) ‘The term “absolute ownership” hardly needs definition. An ownership liable to be divested by any contingency arising by any instrument creating the ownership is not absolute.’
(In re Howland's Will,
75 App. Div. 207, [77 N. Y. Supp. 1025].)
“We must presume that the testator used language advisedly, in view of its universally accepted significance. And as a bequest to a person necessarily implies the condition that the devisee shall be alive at the time the bequest is to take effect, we find the testator expressing his intention that if the said William P. Carothers shall be alive at the time of the death of Eleanor, he shall be vested with the absolute dominion over said property, not liable to be divested by any contingency that may arise, provided if he dies without issue the property becomes the property of John Thomas Carothers. Is it not, therefore, the natural construction, to limit the operation of the qualifying contingency at least to the period prior to the death of said Eleanor
1
At any rate, there is some uncertainty as to whether the testator meant death ‘without issue’ at any time, and hence to give effect to the rule as to a clear devise we reach the conclusion that the testator had in view a substitutionary provision in case William should die before the testator or the said Eleanor.
“Again, the contrast between the perspicuous words of devise in reference to William P. Carothers and the somewhat obscure phraseology as to John Thomas Carothers and Eliza
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beth Witherspoon is worthy of notice. In the first instance there can be no doubt as to the testator’s intention. He uses language apt and ample to vest in William the entire estate: T also give and bequeath.’ But in ease of William’s death without issue ‘his property herein specified
becomes
the property of John Thomas Carothers, and at his death
goes
to Elizabeth Witherspoon.’ While the words ‘becomes’ and ‘goes,’ unembarrassed by the consideration of the clear devise of the fee to William, would probably be held sufficient to express the intention of the testator that the property ‘becomes’ the property of John Thomas and at his death ‘goes’ to Elizabeth, yet it is manifest that in one case the intention is entirely free from doubt, but in the other, at least somewhat obscure and uncertain. I think it is reasonably clear that the testator had in view the death of Eleanor as to the point of time when all uncertainty should be removed as to the character of the estate vested in the devisee. This conclusion seems to be confirmed by the last devise of one thousand dollars to Elizabeth Witherspoon and five hundred dollars to May H. Lowry to be received ‘at the death of my said wife.’
“If we had no other guide than the decisions of the courts to prescribe the limits of the phrase ‘death without issue’ it would be difficult to reach a conclusion. The expression has indeed received judicial exposition in many jurisdictions. It is asserted in one of the briefs that more than one hundred cases dealing with this question have been cited by each party herein. Many of these decisions are irreconcilably conflicting. In some instances, however, the phraseology is somewhat different and the conflict is, therefore, more apparent than real.' For example, sometimes the devise is to A, and in case of his death to B. Death is not a contingency, but a certainty, and as it is apparent in such a case that the testator had in view a possible contingency it is hardly open to controversy that he contemplated the death of A in his lifetime. But ‘death without issue’ introduces an additional element and renders the question less free from doubt, although the difference is ignored in some of the decisions.
“But confining our attention to the expression before us, it is apparent that the cases are hopelessly at variance, as may be seen by a reference to the following from the many that have been examined.
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“The question is elaborately and learnedly discussed and many authorities reviewed in
Fowler et al.
v.
Duhme et al.,
143 Ind. 248, [42 N. E. 623], wherein it is declared: ‘Another rule is that the law so favors the vesting of estates and is so adverse to the postponement thereof that they will be held to vest at the earliest possible period in the absence of a clear manifestation of the intention of the testator to the contrary. While this rule has usually been declared with reference to the vesting of remainders, it is nevertheless declaratory of the policy of the law which would prefer certainty rather than contingencies, and which would deny force and effect to an uncertainty raised by doubtfully expressed contingencies instead of resorting to slight circumstances and rendering them effective to defer the vesting of estates or make their vesting contingent. This policy should not be relaxed when inquiry is directed to the force of words asserted to dismantle an estate in fee devised by apt words. . . . Another rule, and that which is of the greatest significance in the construction of the will before us is, as said in
Wright
v.
Charley,
129 Ind. 257, [28 N. E. 706], “that where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator coupled with a devise over, in case of his death without issue, the words refer to a death without issue during the lifetime of the testator and that the primary devisee surviving the testator takes an absolute estate in fee simple.” This rule may be said to be almost if not entirely free from conflict in the decisions and there is no doubt of its adoption in this state and that it is supported by the vast weight of authority’—citing on page 261 of 129 Ind. [42 N. E. 627] a long list of cases.
“On the other hand, the view urged by appellants is strongly upheld by the supreme court of the United States in
Britton
v.
Thornton,
112 U. S. 532, [28 L. Ed. 816, 5 Sup. Ct. 294], in the following language: ‘When indeed a devise is made to one person in fee and “in case of his death” to another in fee the absurdity of speaking of the one event which is sure to occur to all living as uncertain and contingent has led the courts to interpret the devise over as referring to death in the testator’s lifetime. (2 Jarman on Wills, Ch. 48;
Briggs
v.
Shaw,
9 Allen, (Mass.) 516; Lord Cairns in
O’Mahoney
v.
Burdett,
L. R. 7, H. L. 388, 395.) But when
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the death of the first taker is coupled with other circumstances which may or may not ever take place, as for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect according to the ordinary and literal meaning of the words upon death under the circumstances indicated, at any time, whether before or after the death of the testator.’
“The question has been brought 'to the attention of our supreme court several times, but I think it can hardly be said to have been positively adjudicated.
“In
Jewell
v.
Pierce,
120 Cal. 82, [52 Pac. 133], it is said: ‘The construction which these words in a will should receive has been decided differently in different states, but has never been determined in this state.’ The court, however, declined to decide the question, holding that it was not necessary to a decision of the cause.
“The language construed in
Estate of Alexander,
149 Cal. 146, [9 Ann Cas. 1141, 85 Pac. 308], involves a different contingency from the one before us. The court, though, refers to a limitation over in case of death as follows: ‘A devise to A with a limitation over in case of his death vests an absolute estate in A, unless he dies during the testator’s lifetime. (Citing cases.) Similarly a gift to various persons “or the survivors of them” refers to those surviving at the death of the testator. The Civil Code of this state provides (sec. 1336) that “words in a will referring to death or survivorship, simply, relate to the time of the testator’s death, unless possession is actually postponed when they must be referred to the time of possession.” But the above authorities as well as many more that might be cited show that the same rule exists universally irrespective of any statute.’ Whether the court would" have made any distinction between a limitation over ‘in case of death’ and one ‘in case of death without issue’ does not appear, nor was it necessary to decide the question, although some of the cases cited with approval hold that the phrase death without issue relates to death in the lifetime of the testator. Moreover, for other reasons stated in the opinion, it seems clear that the testator intended the conditional limitaion ‘if she remains unmarried’ to apply at the time of the testator’s death.
“In the
Estate of Barclay,
152 Cal. 753, [93 Pac. 1012],
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allusion is made to the subject as follows: ‘The only provision in the will under which S. C. Blackinton could possibly be deprived of this property was one to the effect that in case one or more of the children should die their share was to be divided among the remaining children “unless they have heirs.” This provision apparently referred only to such a death as might occur before the death of the testator (Civ. Code, see. 1336), but in any event "it could not apply to S. C. Blackinton’s interest, for she left a child surviving her as well as her husband.’
“I think, therefore, that respondent is not justified in saying that by the foregoing decisions in this state the question is foreclosed as to whether the words ‘dying without issue’ are substitutionary merely or that the issue here is determined by said section 1336, but gathering the intention of the testator from the whole instrument, the only reasonable construction, in my opinion, is opposed to the theory that death at any time without issue was contemplated.
“Appellants also contend that an important feature here is the precedent life estate in favor of the said William P. Carothers. This would be of moment if it were not followed by the devise to him of the absolute fee.
“The said provisions in reference to William and Eleanor express as clearly as language can the intention that they should have the life estate until the death of Eleanor and then the fee should vest in William. Of course, no one would contend that William’s life estate would continue after he was vested with the fee. Therefore appellants make a wrong application of the quotation from
Fowler
v.
Ingersoll,
127 N. Y. 472, [28 N. E. 471], to the effect that ‘This rule (holding that the words of contingency are substitutionary merely) has no application when the first devisee or legatee takes a life estate and is applied only when the prior gift is absolute and unrestricted. . . . And many cases could be cited where the courts, having construed the prior estate to be less than the absolute fee have held that the words of contingency referred to a death whenever it may happen.’
“Instead of devising a life estate to said William, the testator, after using language that carries such an implication, hastens to express in the most positive and unequivocal manner his purpose to vest the entire estate in William, subjecting
[609]
its possession, as we have seen, to the life interest of Eleanor.
“The fact that the testator died within a week after the execution of the will is not of sufficient moment to affect the result. The argument is that since he must have been under a sense of impending death and William was of the age of 42 and unmarried, it is most improbable that the contingency mentioned could have been contemplated as occurring prior to the testator’s death. But the force of the contention is entirely nullified by the construction which refers the said contingency to the time of the death of Eleanor. Besides, there is no positive evidence that the testator believed that he was about to die. It is true that he was quite ill. He was suffering from an ailment that had afflicted him periodically for ten years. But at any rate, conceding that he felt that the end was near, this is only a circumstance to be considered with other circumstances in case of doubt, and in view of the language of the will expressing so emphatically the purpose to vest an unqualified estate in William, should not be given the weight claimed by appellants.
“As we construe the will there is no occasion for the application of the rule preferring the latter in case of conflicting provisions. Holding that there is a clear devise of the fee to William and that the contingency is confined either to the death of the testator or of Eleanor, we find harmony rather than inconsistency in the provisions in controversy.”
I believe that this opinion correctly disposes of the questions presented on this appeal, and that the order should be affirmed for the reasons therein stated. I therefore dissent from the judgment.
Sloss, J., and Melvin, J., concurred.