Rhoton v. Blevin

California Supreme Court Oct 7, 1893 No. No. 18126Published

Before: Searls

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Holding. The court held that the testator's will demonstrated a clear intent to exclude his grandchildren by using the term "children" in an enlarged sense, thereby satisfying the requirement that the omission of issue be intentional under the Civil Code.

Issues

Whether the testator intentionally omitted his grandchildren from his will such that they are precluded from inheriting as if he had died intestate.
Whether the term "children" in the will should be construed in an enlarged sense to include the testator's grandchildren.

Disposition. reversed

Quotations verified verbatim against the opinion

“The only question here is, Did the testator intentionally omit to provide in the will for the issue of his deceased children, and does that intention appear upon the face of the will?”

“We think the will, taken together, shows that the term “children” was used in that enlarged sense which includes descendants of the second as well as of the first degree”

Synopsis

Will—Exclusive Bequest to Wife—Intentional Omission of Gbandchildben. — The intention of a testator to bequeath and devise all his property to his wife to the exclusion of the issue of his deceased children, as well as his chil Iren, is clearly apparent from the terms of a will bequeathing all the testator’s property to his wife, which recites that the testator knows that she “will ever continue the same kind, devoted mother to our children which she has so thoroughly proven herself on all occasions. I make no provisions for said children further than herein mentioned,” and “in thus bequeathing all my estate to my wife to the exclusion of all my chidren, I am moved by no want of paternal affection for any of said children, but by the belief that their own interests will be better served thereby, and well knowing that my wife will make the best use and disposition of the estate.”

Id.—Teems of Will must Show Intention to Omit.—In the determination of the question as to whether or not the children of the deceased children of a testator were intentionally omitted from the will, the face of the will itself must be looked to, and in order to show that the omission was intentional the words of the will must show that the testator had the persons omitted in his mind, and having them so in his mind, has omitted them from the provisions of the will.

Id. — “Children” may Include Gbandchildben.—Though the term “children” must ordinarily be presumed to have been used in a will in its primary and natural sense, yet where the will on its face, taken as a whole, clearly indicates an intent in the mind of the testator at the time of making of the will to use the terms in an enlarged sense, so as to include the issne of deceased children, it will be so interpreted.

Id.—Construction of Will—Intention of Testator.—A will is to be construed according to the intention of the testator; and if his intention cannot have effect to its full extent it must have effect as far as possible.

Id.—Effect to be Given to Every Expression.—The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative.

Searls, C. This action was brought by Ida Rlioton and Elenora Rhoton, minor children of Amanda Rlioton, deceased, and Marion Sitton, a minor child of Eliza Sitton, deceased, to construe the last will of William T. Blevin, deceased. William T. Blevin, deceased, was a resident of the county of Sutter, and [646]on the twenty-eighth day of April, A. D. 1888, made, executed, and published his last will aud testament in which the following language is used: —

“First knowing that my beloved wife, Ona Blevin, will ever continue the same kind, devoted mother to our children which she has so thoroughly proven herself on all occasions, I make no provisions for said children further than herein mentioned, but I grant, give, and bequeath to my said beloved wile, Ona Blevin, all and singular the property, real, personal, and mixed, wheresoever situated, and all moneys, goods, aud chattels of Avhatsoever name, nature, or description, belonging to me of Avhicli I may die possessed, or to the possession of which I may be in any manner entitled.

“In thus bequeathing all my estate to my wife to the exclusion of all my children, I am moved by no want of paternal affection for any of said children, but by the belief that their own interests will be better served thereby, and well knowing that my wife will make the best use and disposition of the estate which her industry has largely contributed to acquire.”

The testator then proceeds to appoint his wife, Ona Blevin, as the sole executrix of the will, to act as such without giving I bonds or security, aud confers upon her pow'er and authority i to lease, sell, and dispose of all the property, real or personal, absolutely, without applying to any court for permission so to do, aud generally confers upon her all the powers necessary and requisite to dispose of the property, pay his debts, etc.

At the time of making said will, and on the ninth day of January, 1889, at which time the said William T. Blevin departed this life at Sutter County, California, he left surviving him as his next of kin and heirs-at-law besides Ona Blevin, his Avife, four children of full age, and the plaintiffs herein, who Avere his grandchildren and the children respectively of Amanda Bhoton and Eliza Sitton aforesaid, deceased, daughters of the said William T. Blevin and one Ona Blevin. The will is set out in full in the complaint, to which complaint the defendant demurred upon the grounds: 1. That the complaint did not state facts sufficient to constitute a cause of action against defendant. 2. That it appears from the copy of the will set out in the petition that testator did not omit to provide in his

Rhoton v. Blevin

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