Estate of Kunkler

HENSHAW, J.

By her holographic will Laura E. Kunkler, after disposing of certain articles of personal property to

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designated legatees, directed that all of the remainder of her estate should be converted into cash, and after the payment of her debts, the money remaining should be “apportioned, appropriated and paid out as follows.” Then followed the names of fourteen legatees to each of whom she left a named percentage of the moneys; to one fifteen per cent, to another five per cent, to another ten, to another four, to another two, and finally “ten per cent to some worthy charity,” the total aggregating one hundred per cent, and thus making a disposition of her whole estate. A codicil to her will, also admitted to probate, provided: “At my death I wish my nephew Eugene L. Duden receive but five ($5.00) dollars from my estate. He will know the reason why. This is my last wish. My other heirs will see that this is carried out. ’ ’ Three legatees named in the will who were strangers in blood to the testatrix died prior to her death. Another legatee, a niece, also died prior to the death of the deceased, leaving no lineal descendants. The attempted legacy of ten per cent to “some worthy charity” is admittedly void. As to all of these legacies the court, upon distribution, declared that they were undisposed of by the will and belonged to the heirs at law. (Civ. Code, secs. 1343, 1386.) Eugene L. Duden, named in the codicil, had been left a legacy of ten per cent. This was revoked by the codicil and the court decreed that this fell also in the residuum undisposed of by will.

Certain legatees related by blood to the deceased died prior to her death leaving lineal descendants. The court decreed distribution of their legacies, amounting in the aggregate to eight per cent of the whole, under section 1310 of the Civil Code, to their lineal descendants. The appellant, one of the legatees, insists that this distribution is

erroneous;

that all of the legatees constitute a class as residuary legatees and that all the legacies which have failed by reason of death, revocation, or other cause, belong to and should be ratably distributed amongst the remainder of the class. Herein appellant argues that a construction resulting in testacy is to be preferred to one producing intestacy in whole or in part; that the testatrix’s intent is to govern and that her intent clearly was to dispose of all her property to and amongst the named legatees; that they, therefore, constitute a class; that significance attaches to her use of the words “apportioned, appro