Payne v. Payne

California Supreme Court Jul 1, 1861Published

Before: Field

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Holding. The court held that the widow took the entire estate, as she was entitled to one-half of the common property by right and the remaining half as the sole devisee under a will where the omission of the children was proven intentional by the codicil. Furthermore, the executrix possessed the authority to sell estate property without Probate Court orders because the will explicitly granted such power.

Issues

Whether the widow is entitled to one-half of the common property by right and the remaining half as sole devisee.
Whether the omission of the children from the will was intentional under the statute.
Whether the executrix may sell estate property without prior authorization from the Probate Court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the plaintiff took one undivided half of the common property in her own right by virtue of the community existing between herself and husband; and that the remaining half was subject to his testamentary disposition.”

“The codicil refers to the will, and operates as its republication, and the two are to be regarded as forming but one instrument, speaking from the date of the codicil.”

Synopsis

Under the eleventh section of the Act of 1850, defining the rights of husband and wife, which reads : “ Upon the dissolution of the community by' the death of either husband or wife, one-half of the common property shall go to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased,” one-half of the common property goes, on the death of the husband, absolutely to the wife, and the remaining half is subject to the testamentary disposition of the husband ; in the absence of such testamentary disposition, such half goes to the descendants of the husband—that is to a particular class of his heirs.

Beard v. Knox, (5 Cal. 252) upon this subject,_affirmed.

The codicil to a will operates as a republication of the will, and the two are to be regarded as forming but one instrument, speaking from the date of the cpdicil.

Where a will gives all the testator’s property to his wife, without naming his children, and subsequently a codicil is made referring to the will and mentioning the children: Held, that the codicil and the will must be read together as parts of one instrument in determining whether the omission to provide for the children was intentional, within the seventeenth section of the Act of 1850 concerning wills, which declares that if the testator omit to provide in his will for his children, they shall inherit the same share in his estate as if he had died intestate, “unless it shall appear that such omission was intentional.”

Held, further, that the only object of the statute is to protect the children against omission or oversight, frequently arising from sickness, old age or other infirmity, or the peculiar circumstances under which the will is executed; and that whenever the children are present to the mind of the testator—and of this the fact that they are mentioned is conclusive evidence—the statute affords-them no protection if provision jg not made for them.

Held, further, that in this case, as the property left by the husband was common property, and as his will devises all bis property to his wife and as the codicil mentions the children, the wife takes one-half the property in her own right, and the other half as devisee under the will.

Query. Whether a-letter-addressed by the testator to his wife, the executrix, and accompanying the will is admissible in evidence, to he read in connection with the will, to show that the omission of the testator to provide for his children in the will was intentional.

Where the will of a husband makes his wife sole executrix and devisee, with authority to dispose of the estate at public or private sale without the previous order of any Court: Held, that she may sell without any order of the Probate Court; that the one hundred and forty-eighth section of the act relating to the estates of deceased persons, declaring that “no sale of any property of an estate shall he valid unless made under order of the Probate Court,” applies only to sales in cases not provided for by the will; and that the statute is operative only in the absence of testamentary power.

Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring.

This is an amicable suit to determine the rights of the parties under the will of Theodore Payne, late of the city and county of San Francisco. Payne died on the ninth of April, 1861, possessed of a large property in real estate, situated in that city, and leaving surviving him a widow, the plaintiff, and three infant children, the defendants, the lawful issue of himself and plaintiff. The real estate was common property belonging to the community existing between him and the plaintiff. By a will bearing date on the fourteenth of August, 1857, he gave all his estate, real and personal, to his wife, and appointed her sole executrix of the will, declaring that he waived all security for the performance of the trust reposed in her; and empowered her to sell the whole or any part of the estate, at public or private sale, as she might see fit, and for cash or on credit, without any previous application to any Court for authority for that purpose. In this will the children are not named. A letter from the decedent accompanied the will, addressed to his wife, in which he states, that he left his entire property to her, because of his unbounded confidence in her prudence and ability to-eianage the same; and that he made no mention of his children, knowing that she would do all that could be done for their welfare, and that to her judgment and maternal affecti<$n he trusted their interests.

[300]On the ninth day of March, 1861, being about to embark from JSTew York to San Francisco, he made a codicil, in which he refers to his will, stating its date, and provides, in case of the death of his wife and children before his arrival in San Francisco, for a different disposition of his property, and for ■ the appointment of another person as executor of his will, and concludes with a declaration that the codicil is to be effective only in case of such death of wife and children.

The estate is incumbered with debts, and the plaintiff, to whom letters testamentary have been issued upon probate of the will, has endeavored to dispose of a portion of it to pay them, but has met with embarrassments and difficulties, arising from doubts as to her rights and authority under the will; and, therefore, in the language of' the complaint, “ in order to avoid doubt, future litigation, multiplicity of suits and consequent loss and expense, and that her acts in the premises may be clearly lawful, and not calculated to cloud the title of the said real estate, and that the interests of all parties in the said estate may be guarded and protected,” she prays “ the aid and beneficent interposition of the Court ” in the construction of the will, and to define the interest she took under the same, and her authority as executrix. She claims: first, that she took the whole estate of which her husband died seized—one-half in her own right by virtue of the community existing between him and herself, and the other half as sole devisee under the will; but second, if the children are held to be forced distributees of the one-half of the estate in the same proportions to which they would have been entitled in case their father had died intestate, that then she has the right, as executrix under the will, to sell the estate or any portion of it, without the order or interference of the Probate Court, for the payment of the debts of the deceased, or for. any other purpose, and to pass to the purchaser such right and interest as he possessed.

Payne v. Payne

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