Gallian v. Riemer

NOURSE, P.J. This appeal involves the interpretation of the will of Selma Riemer, deceased, the debatable question being whether the estate devised to her nine-year-old grandson is vested or contingent. This question is presented by the third and fifth paragraphs of the will which read: “THIRD: I hereby give, devise and bequeath to my grandson, Herbert Julius Riemer, my three houses at the Southeast corner of Baker and Union Streets, San Francisco, California when he [635]becomes 21 years of age, in the meanwhile his mother Alys Riemer to be his guardian.

“FIFTH: I hereby give, devise and bequeath the rest and residue of my estate, wherever situated, share and share alike to my daughter Irma Gallian, and to my grandson Herbert Julius Riemer. ’ ’

The court held that the interest of the grandchild was vested under the third paragraph and the appellant argues that possession and enjoyment of the subject of the devise should be postponed until the devisee reaches his majority, and that, in the meantime, the rents and profits of the realty should be distributed one-half to her and one-half to the minor under the residuary clause of the will. We are satisfied that the trial court’s interpretation of the will was sound and that the decree of distribution in accord therewith should be affirmed.

It is an accepted rule in the construction of a will that it must be construed according to the intention of the testator. Section 101, Probate Code. In aid of such construction the Probate Code declares that: “Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator’s death.” (§28.) With this presumption as the outstanding piece of evidence of the intention of the testator the trial court properly concluded that the third clause of the will was intended to give to the grandchild a vested interest in the realty and all that went with it, and that the boy’s mother was named as guardian for the collection of the rents and the management of the property during his minority.

In this conclusion the decree of the trial court finds support in Williams v. Williams, 73 Cal. 99 [14 P. 394]; Estate of Yates, 170 Cal. 254 [149 P. 555]; Estate of Blake, 157 Cal. 448 [108 P. 287]; Jones v. Pueblo Savings & Trust Co., 103 Colo. 455 [87 P.2d 2]; and many other cases which need not be cited here. In the Williams case the court rested the decision on the presumption of the code section stating: “ ‘The law favors the vesting of interests, and every interest will be presumed to be vested, unless a contrary intention is clearly manifest.’ ” (Emphasis ours.) In Estate of Yates bequests were made to named legatees “to be paid” when they reached a certain age. The Supreme Court said: (p. 256) “The legacies were vested. Notwithstanding the unimportant differ