Cox v. Wochos

MOLINARI, P. J. Raymond Cox appeals from the judgment determining interests in the estate of Hazel Woehos. Appellant’s sole contention is that the trial court incorrectly construed that portion of the residuary clause of decedent’s will in which she bequeathed half of the residue of her estate. Decedent’s will provided that this portion of the estate should be held in trust for the benefit of her husband, Jacob J. Wochos, during his lifetime, and that upon his death it should be distributed as follows: $25,000 and $5,000 to two specifically named legatees and “The balance . . . , in equal shares, to the then living nieces and nephews of Jacob J. Wochos, and to Raymond Cox, the nephew of Hazel Wochos, or to the survivors or survivor of them, and their issue per stirpes.” (Par. Fourth, subd. B (2)(e).) The trial court construed this language as unambiguously providing that the balance of the trust property distributable under this paragraph be divided equally among all persons referred to in the paragraph either by name or relationship. Judgment was entered accordingly and Cox appeals, claiming that under the subject paragraph he is entitled to one-half of the balance of the trust property and that the remaining one-half should be divided among the nieces and nephews of Jacob Woehos. We [340]have concluded that there is no merit to appellant’s contention and that the trial court correctly interpreted the subject provision of decedent’s will.

The applicable rule is stated in 2 Jarman on Wills (6th ed.) p. 205, as follows: “Where a gift to the children of several persons, whether it be to the children of A. and B., or to the children of A. and the children of B., they take per capita, not per stirpes. The same rule applies, where a devise or bequest is made to a person and the children of another person; or to a person described as standing in a certain relation to the testator, and the children of another person standing in the same relation. ...” (Italics added.) This rule has been followed in several California cases in interpreting provisions similar to the subject provision. (Estate of Rauschenplat, 212 Cal. 33, 35 [297 P. 882, 78 A.L.R. 1380] ; Estate of Morrison, 138 Cal. 401, 403-404 [71 P. 453]; Estate of Lewis, 91 Cal.App.2d 322, 325 [204 P.2d 898]; Estate of Carroll, 62 Cal.App.2d 798, 801-802 [145 P.2d 644].)

The foregoing rule is not rendered inapplicable by the fact that appellant is mentioned by name whereas the other beneficiaries are referred to as a group, nor by the circumstance that appellant is the sole representative of decedent’s family whereas the other beneficiaries are representatives of the family of decedent’s husband. These distinctions in the designation of the beneficiaries do not indicate an intention on the part of the decedent as to the manner of disposition of the subject property among these persons, but merely reflect a convenient way of describing the persons who are to take under the subject paragraph of the will. (See Estate of Lewis, supra, 91 Cal.App.2d at p. 325.)