Pacific-Security Bank v. Roberts

California Court of Appeal Jul 20, 1970 No. Civ. No. 35844Published

Before: Roth

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Holding. The court held that the antilapse statute (Probate Code section 92) applies to a residuary bequest even when the testator becomes incompetent after executing the will and the residuary legatee predeceases the testator, absent a clear expression of contrary intent. A nominal bequest to a beneficiary does not sufficiently demonstrate an intent to disinherit that beneficiary from taking as a lineal descendant under the antilapse statute.

Issues

Whether the antilapse statute applies when a testator becomes incompetent after executing a will and the residuary legatee predeceases the testator.
Whether a nominal bequest of one dollar to a beneficiary constitutes a clear expression of intent to disinherit that beneficiary from taking as a lineal descendant under the antilapse statute.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 92, therefore, must be read into the will unless a clear expression to the contrary appears.”

“The incapacity of testatrix prior to her death and the death of Watkins prior to the death of testatrix are not sufficient to defeat the application of section 92 of the Probate Code.”

“To render the statute inoperative a contrary intent on the part of the testator must be plainly indicated.”

Opinion

ROTH, P. J. Appellants Turner F. Roberts (Turner) and Lila Helen Roberts Walsh (Lila Helen) grandchildren of Lila Bibb Roberts, deceased, appeal from an order predicated upon a petition of Pacific-Security Bank, executor, to determine heirship.

There is no dispute about the facts.

On March 20, 1953, Lila Bibb Roberts deceased (testatrix) executed her last will. In pertinent part the will provided:

[750]Paragraph First recites that testatrix was a widow; that she had a deceased son, Archie Roberts who was the father of appellants Turner and Lila Helen and a living son Watkins Roberts, father of Gerald Roberts (Gerald), Richard Roberts (Richard) and David Roberts (David).

Paragraph Second declared “It is my intention hereby to dispose of all property, real, personal or mixed, and wheresoever situated, which I have a right to dispose by Will . . . .”

Dispositions were made:

To Turner: $10,000 and her Pecan Valley Farm in Texas.

To Lila Helen: $10,000 and a parcel of unimproved property in Texas.

To Gerald: $10,000 and a subdivision lot in Texas.

To David: $5,000.

To Richard: $1.

To Watkins’ wife Lillian: $5,000.

Paragraph Tenth disposed of the residue as follows: “I give, devise and bequeath unto my son, Watkins Bradley Roberts, all the rest and residue of the property of which I may die possessed, whether real, personal or mixed and wheresoever situated.”

Paragraph Eleventh stated her intention not to provide for any other possible heirs living at the time of her death. Paragraph Twelfth was a “no contest clause” providing that any contestant should receive “the sum of One Dollar ($1.00) Only.”

On December 28, 1959, approximately six years and nine months after the will was executed, testatrix was judicially declared incompetent. She died on October 14, 1968. There was no restoration to competency prior to her death.

Pacific-Security Bank v. Roberts

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