As said in Estate ofTibbetts, 48 Cal.App.2d 177, 179 [ 119 P.2d 368]: "the persons acquiring rights under said statute acquire such rights as `statute-made' devisees or legatees. . . . Such rights are acquired regardless of whether such persons are or are not heirs of the testatrix." ( Cf. Estate of Pew, 10 Cal.App.2d 41, 43-45 [ 50 P.2d 1045]; Larrabee v. Tracy, 39 Cal.App.2d 593, 600-601 [103 P.2d 61].) [2] It was determined upon the prior appeal that respondent's complaint states a cause of action for extrinsic fraud, and the only problem now before us with regard to this issue is the sufficiency of the evidence to support the judgment.
Although, as respondents argue, it is based on the presumed intention of the testator, nevertheless the persons acquiring rights under the antilapse statute acquire them as substitutes, thrust, by force of the statute, into the vacant place of the named legatee. ( Estate of Pew, 10 Cal.App.2d 41, 44 [ 50 P.2d 1045].) Respondents cite Estate of Esposito, 57 Cal.App.2d 859 [ 135 P.2d 167], decided in 1943, 12 years before the amendment to section 257 The opinion contains dictum which is favorable to respondents' interpretation of the word "kindred," and to their contention that the antilapse statute relates to wills and not to succession.
(Prob. Code, § 101; Estate of Clippinger, 75 Cal.App.2d 426, 429 [ 171 P.2d 567]; Estate of O'Brien, 74 Cal.App.2d 405, 408 [ 168 P.2d 432]; Estate of Stevens, 27 Cal.2d 108, 120 [ 162 P.2d 918].) It is likewise established that the court is bound to read into the will section 92 of the Probate Code. ( Estate of Pew, 10 Cal.App.2d 41, 43 [ 50 P.2d 1045]; Larrabee v. Tracy, 39 Cal.App.2d 593, 601 [ 104 P.2d 61]; Estate of Tibbetts, 48 Cal.App.2d 177, 179 [ 119 P.2d 368].) There can be no question but that the intention of the testator controls but to render the statute inoperative a contrary intent on the part of the testator must be plainly indicated.
[3] The scheme of section 92, Probate Code, is founded on blood relationship and belongs to the branch of the law which provides methods which admit of the disposition of estates as they would not go under the laws of succession. Reading the section into the will, as we must (Estate of Pew, (1935) 10 Cal.App.2d 41 [ 50 P.2d 1045]; Larrabee v. Tracy, (1940) 39 Cal.App.2d 593 [103 P.2d 61]), we see that the legacy was, in reality, left to the children of Eugene, since he had predeceased his father. It is as if they had been named in the will, provided, of course, they are his lineal descendants, which we cannot doubt.
Reclamation District No. 3 v. Goldman, 65 Cal. 635, 4 P. 676. And even if it were, the contention as made is obviously without merit (In re Estate of Pew, 10 Cal.App.2d 41, 50 P.2d 1045; Larrabee v. Tracy, 39 Cal.App.2d 593, 104 P.2d 61--the instant case on its prior appeal; In re Estate of Tibbetts, 48 Cal.App.2d 177, 119 P.2d 368), and requires no discussion. Before proceeding to a consideration of the remaining contentions of appellant it is well to have in mind certain legal principles which we deem to be controlling.
The testatrix was a resident of California and made her will here disposing of property situated in this state. The anti-lapse statute of this state must be read into said will ( Estate of Pew, 10 Cal.App. (2d) 41 [ 50 P.2d 1045]; Larrabee v. Tracy, 39 Cal.App. (2d) 593 [ 104 P.2d 61]), and the persons acquiring rights under said statute acquire such rights as "statute-made" devisees or legatees. ( Estate of Pew, supra, p. 44; Larrabee v. Tracy, supra, p. 601.)
Appellant is the daughter and sole lineal descendant of Kate Chase, a cousin of testator, who was deceased at the time testator executed his will leaving her one-sixth interest in his estate, and consequently appellant takes such interest under the provisions of the statute in the same manner as her mother would have done had she survived the testator, i.e., as a devisee and legatee under the will. In Estate of Pew, 10 Cal.App. (2d) 41 [ 50 P.2d 1045], it is held that the right of a son of a predeceased legatee to take a legacy flows from section 92 of the Probate Code and not through the estate of his father, and the court, in construing the will, is bound to read into it the provisions of said section. In said last cited case the court stated, quoting from Denise's Exrs. v. Denise, 37 N.J. Eq. 163, 168: "`The statute-made legatee is a mere substitute; he is thrust, by force of the statute, in the place made vacant by the death of the legatee named in the will, and is given what, but for his death, would have gone to the primary legatee.
The court must read into a will statute governing disposition of property where devisee or legatee dies before testator. In re Pew's Estate, 10 Cal.App.2d 41, 50 P.2d 1045. Antilapse statutes are remedial and should receive a liberal construction.