Opinion
Rehearing Granted Jan. 20, 1961.
Opinion vacated 10 Cal.Rptr. 411.
Stanley Mosk, Atty. Gen., by W. R. Augustine, Deputy Atty. Gen., for appellant.
George L. Naylor, Los Altos, for respondent.
WARNE, Justice pro tem.
Respondent, Leah Selix, filed a petition to determine heirship in the Estate of Peggy Karkeet, alleging that she is the sole devisee and legatee under the last will of the decedent, and is entitled to have all of decedent's estate distributed to her. Appellant filed a statement of interest in opposition to respondent's petition wherein it was alleged that the decedent died intestate and without heirs and the entire estate should therefore escheat to the state. The probate court found that the decedent had not died intestate and that respondent is the sole devisee and legatee under the last will of the decedent and entitled to have the residue of decedent's estate distributed to her. A decree was entered accordingly and this appeal followed.
It is conceded that if Peggy Karkeet died intestate, the residue of her estate would escheat to the State of California, since there are no known heirs. Hence, the sole question presented by this appeal is
'Sonora, Calif.
'To Whom it May Concern
'This is my authorization to Miss Leah Selix, 832 Green St., San Francisco, California, to act as executrix of all and any property and personal effects (and bank accounts) to act without bond or order of court.
'Signed this 5th day of May 1956
'Peggy E. Karkeet
'Lisclotte Sherrard
'Witness'
Since no extrinsic evidence was introduced, the document's proper interpretation becomes a question of law and not of fact and this court can, therefore, exercise its independent judgment on the issue before it. Estate of Platt, 21 Cal.2d 343, 131 P.2d 825; Estate of O'Brien, 74 Cal.App.2d 405, 168 P.2d 432. Appellant contends that the decree is against law.
Although the facts are distinguishable, we find in Estate of Meade, 118 Cal. 428, 430, 50 P. 541, 542, an analogous situation in some respects to the question presented here. There the decedent wrote a letter to an undertaker some sixteen months prior to her death. The last paragraph of the letter read: "My brother, Porter Sherman, will take charge of my estate, and be the sole administrator, without bonds, to trade, sell, or occupy, as may seem to him fit." There were no other provisions in the writing making disposition of any property of the decedent. It was there claimed that by this paragraph of the letter, Porter Sherman was not only appointed executor, but that a devise and bequest to him of all her property was declared. The court said, 118 Cal. at page 431, 50 P. at page 542: 'The language of the last paragraph * * * is more consistent with the construction that she was referring to a will already made, or one thereafter to be made. * * *' Likewise, appellant here asserts that the document in question does nothing more than appoint Leah Selix executrix and the language used is more consistent with the construction that she was referring to a will already made, or one thereafter to be made, even though the document was executed almost two and one-half years prior to the death of the decedent.
Appellant argues, and correctly so, that the intent of the testator must be gathered from the face of the instrument itself. Estate of Wattson, 66 Cal.App.2d 743, 746, 153 P.2d 87; Estate of Maloney, 27 Cal.App.2d 332, 80 P.2d 998. Also, our attention is directed to the Estate of Beldon, 11 Cal.2d 108, 112, 77 P.2d 1052, 1054, where the court said: 'To say that because a will does not dispose of all of the testator's property it is ambiguous and must be construed so as to prevent intestacy, either total or partial, is to use a rule of construction as the reason for construction. But a will is never open to construction merely because it does not dispose of all the testator's property. 'Courts are not permitted in order to avoid a conclusion of intestacy to adopt a construction based on conjecture as to what the testator may have intended, although not expressed.' In re Estate of Hoytema, 180 Cal. 430, 181 P. 645, 646. Only where there is an ambiguity may the rule which directs a court to prefer that mode of interpretation which prevents intestacy, be applied. Sec. 102, Prob.Code. A court may not, under the guise of construction, make a will for a testator to take the place of the one made by him if its intent is plain. And this is so regardless of the consequences of the testator's will.' Further, the intent of the testator must be gathered from the face of the instrument itself, and while the law favors testacy as against intestacy '* * * there are well defined limits beyond which the courts have not gone, * * * One of these rules, * * * is that the expressed intent will not be varied under the guise of correction The common-law doctrine that title to personal property vests in the personal representative has never prevailed in California. Murphy v. Crouse, 135 Cal. 14, 66 P. 971; Jahns v. Nolting, 29 Cal. 508; Richards v. Blaisdell, 12 Cal.App. 101, 106 P. 732. Nor do we agree with respondent's contention that the phrase 'act without bond or order of court' is inconsistent with the technical meaning of the word 'executrix' and therefore the phrase tends to show 'executrix' was not used in its technical sense, but rather in the sense of making a testamentary gift because, under the terms of the document, the executrix was not required to account to the court for any of her acts.
Section 101 of the Probate Code provides that: 'A will is to be construed according to the intention of the testator. Where his intention can not have effect to its full extent, it must have effect as far as possible.' However, we do not believe a reading of the whole instrument raises a permissible implication that a testamentary gift was intended. Surely, the words 'to act without bond or order of court' used in their ordinary grammatical sense raised no such implication. Nor is a clear intent to use them otherwise apparent. The decedent did not designate the instrument to be her will nor did it make disposition of her property. Such an implication can only arise when the probability of an intention to make the implied testamentary gift appears so strongly from what the testator expressed in his will that a contrary intention cannot be supposed to have existed in his mind. Estate of Franck, 190 Cal. 28, 210 P. 417; Estate of Swan, 5 Cal.2d 635, 55 P.2d 1171; Estate of Maxwell, 158 Cal.App.2d 544, 322 P.2d 1018.
Possibly Peggy Karkeet intended to leave her property to Leah Selix, but she did not express that intention in the instrument admitted to probate as her will. As heretofore stated: 'Only where there is an ambiguity may the rule, which directs a court to prefer that mode of interpretation which prevents intestacy, be applied. (Sec. 102, Prob.Code.) A court may not, under the guise of construction, make a will for a testator to take the place of the one made by him if its intent is plain. And this is so regardless of the consequences * * *' Estate of Beldon, supra. Applying the above-mentioned rules of law to this matter we conclude that the decree must be reversed.
The order is reversed and the probate court is instructed to order distribution to the State of California in accordance with the provisions of sections 231 and 1027 of the Probate Code.
VAN DYKE, P.J., and PEEK, J., concur.