Cripps v. Larsen

Opinion

KING, J. In this case we hold that a devise to two siblings lapsed because they predeceased the testator and left no issue, and their shares passed to the other devisees in proportion to those devisees’ other interests in the estate. Claudia Larsen appeals from an order determining entitlement to distribution of the estate of Ethel lone Begley. We reverse.

Begley died in 1985. She had executed a holographic will in 1960. The will stated, “All of my real estate and personal property is to sold and be divided share and share alike between my two Sisters Lulu L Bolton, Lena S Ford, and one Brother John H. Dickey, all of Willits, California, and the Heirs of my late Sister Viola Davis.” (Sic.)

All of these intended beneficiaries predeceased Begley. Lulu and John died without issue. Lena had eleven children; nine of her children survived Begley, and four issue of one deceased child and two issue of the other deceased child survived Begley. Viola had three children, all of whom predeceased Begley; four issue of these children survived Begley, including two from one child (Larsen and a sister) and one each from the other two children.

The will was admitted to probate on October 11, 1985, and one of Viola’s grandchildren, Lloyd Cripps, was appointed administrator with will annexed. Cripps subsequently filed a petition for determination of entitlement to distribution of the estate. Three of Lena’s children and one of her grandchildren filed objections to the petition. The court ruled as follows:

First, the one-fourth interest devised to the heirs of Viola Davis would go to her grandchildren as heirs expressly designated by the will. Larsen and her sister would each receive one-sixth of this one-fourth interest, and the other two grandchildren would each receive one-third of the one-fourth interest.

[795]Next, the one-fourth interest devised to Lena would go to her children and grandchildren under California’s antilapse statute, Probate Code section 6147, which provides that the issue of a predeceased devisee shall take in the devisee’s place in the manner prescribed by Probate Code section 240. Section 240 provides for per stirpes distribution of an intestate’s estate in equal shares among members of the nearest generation with living issue—including issue who are living and those who have died and left living issue—with the deceased issue’s shares being divided among their issue.1