Opinion
As Modified on Denial of Rehearing July 16, 1963.
For Opinion on Rehearing, see 33 Cal.Rptr. 427.
Thomas S. Bunn, Jr., and Wiley D. Bunn, Los Angeles, for appellants and respondents Trinity Methodist Church and Renee Dellavoix.
Wilson & Wilson and William H. Wilson, San Bernardino, for respondent and appellant Alfred F. Moore.
CONLEY, Justice.
All of the parties interested in the above estate have appealed from the decree of the probate court determining heirship. The necessary prerequisite to the determination of what parties are entitled to take under
'Last Will of Alexander H. Moore
Los Angeles, California
July 27, 1959.
'I hereby give unto my brother Alfred Finley Moore the sum of One Dollar and unto his wife Chella D. Moore the sum of One Dollar. They are my only heirs.
'I hereby grant and give to the Trinity Methodist Church at Twelfth and Flower Streets, Los Angeles the balance of my estate to be used in its missionary work, with the exception of one hundred dollars per month, to be paid to Renee Dellavoix as long as she lives.
'Signed
Alexander H. Moore.'
Alexander Henderson Moore died on October 27, 1959, and his only brother and only legal heir, Alfred Finley Moore, was appointed administrator with the will annexed on February 23, 1961.
The foregoing will was dated more than 30 days, but less than six months, before his death, and the appeal involves, among other things, the application of the provisions of section 41 of the Probate Code, which reads as follows:
'No estate, real or personal, may be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, by a testator who leaves a spouse, brother, sister, nephew, niece, descendent or ancestor surviving him, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, unless the will was duly executed at least 30 days before the death of the testator. If so executed at least 30 days before death, such devises and legacies shall be valid, but they may not collectively exceed one-third of the testator's estate as against his spouse, brother, sister, nephew, niece, descendant or ancestor, who would otherwise, as aforesaid, have taken the excess over one-third, * * *.'
Alfred Finley Moore, as administrator with the will annexed, filed a petition to determine interest in estate and individually filed his statement of claim of interest. This was followed by the filing of a statement of claims of interest in the estate by the Trinity Methodist Church, a California nonprofit corporation, and Renee Dellavoix. After due proceedings, the court filed its decision in the case and a decree determining that Trinity Methodist Church is entitled to one-third of the net distributable estate of the deceased, subject to a lien and charge to secure the payment to Renee Dellavoix of an annuity of $100 per month for the term of her natural life, beginning as of the date of the decedent's death.
No extrinsic evidence was introduced concerning the intention of the testator or the meaning of the holographic will. Therefore, the construction of the will is a question of law which may be independently determined by the appellate court. (Estate of O'Brien, 74 Cal.App.2d 405, 407, 168 P.2d 432; Estate of Rollins, 163 Cal.App.2d 225, 227, 328 P.2d 1005; Estate of O'Connor, 130 Cal.App.2d 258, 262, 278 P.2d 748.)
The basic rule to be applied in the interpretation of a will is that it should be construed in accordance with the expressed intention of the testator. (Prob.Code, § 101; Estate of Peabody, 154 Cal. 173, 175, 97 P. 184.)
And it should not be forgotten that in the construction of wills generally that interpretation is favored which avoids total or partial intestacy. (Estate of Rollins, supra, 163 Cal.App.2d 225, 227, 328 P.2d 1005.)
Looking at the will above quoted, it seems apparent at once that the intentions of the testator were: First, practically to disinherit his only heir at law, Alfred Finley Moore, by giving him the sum of one dollar, and throwing in by way of largess the further sum of one dollar to his brother's wife. Such a provision in a will is intended One of the questions posed by the appellants is whether by the second paragraph of the will decedent intended to leave all of his property except the two dollars to his brother and sister-in-law in trust to the Trinity Methodist Church to pay Renee Dellavoix and to use what was left for missionary work, or whether Mr. Alexander H. Moore intended to provide the payment of the annuity to Renee Dellavoix from the estate itself, leaving any balance over and above the sum necessary to pay such annuity to the church for missionary work. It appears to us that the latter construction is to be preferred, and we find accordingly. In other words, the last paragraph of the holographic will means that decedent wished Renee Dellavoix to receive her annuity from the estate and that the balance of his property over and above that sum shall go to the church to engage in its missionary work. We are led to this conclusion in part because a church, while operating for the purpose of propagating the faith in which its members believe, is not designed by organization or customary function to pay annuities to individuals. On the other hand, the formally administered probate estate of a decedent is specifically created and designed to carry out his intentions and to distribute his property in accordance with law and his expressed wishes. The mere fact that Mr. Moore lived in a civilized community and was a church member and that he made a will would induce an inference that he had general knowledge of the way business is carried on and the distinction between the activities of a church and the functions of the probate court.
That the decedent intended to create an annuity in favor of Renee Dellavoix is apparent and the annuity should begin as of the date of the testator's death. (Estate of Luckel, 151 Cal.App.2d 481, 491, 312 P.2d 24, 66 A.L.R.2d 846.) The annuity should be paid periodically by the administrator with the will annexed. If the beneficiary should apply to the probate court under section 584 of the Probate Code for the purchase of an annuity, the court is anthorized by law to grant such motion and has the right to prescribe the conditions under which the annuity shall be purchased. (Estate of Luckel, supra.)
The provision in favor of the church is charitable, as it is to be devoted to religious purposes, and the use for missionary work is approved by ample authority. (14 C.J.S. Charities §§ 17, 18, pp. 449, 450-451; Estate of Lubin, 186 Cal. 326, 199 P. 15; Estate of DeMars, 20 Cal.App.2d 514, 67 P.2d 374; 10 Am.Jur., Charities, § 56, p. 625; 4 Scott on Trusts (2d ed.) § 371.1, p. 2651; 10 Cal.Jur., Charities, § 6, p. 194; Estate of Graham, 63 Cal.App. 41, 218 P. 84; Estate of Fitzgerald, 62 Cal.App. 744, 217 P. 773.) It is clear that section 41 of the Probate Code restricts by its terms the portion of the estate which the church will receive, but it is equally clear that the one-third which it is entitled to take is that fraction of the net amount remaining in the estate after the payment of the costs of administration, federal estate tax, if any, and the payment of all debts of the decedent. Obviously, the probate court cannot ascertain the amount of property which will go to the church under this provision of law, until it is a position to ascertain of what the net property of the estate consists. Two-thirds of the net estate, as above described, shall go to the decedent's only heir, his brother, Alfred Finley Moore. The judgment is reversed with instructions to the trial court to enter findings and a decree in conformity herewith. Trinity Methodist Church, a corporation, and Renee Dellavoix shall recover their costs on this appeal.
GRIFFIN, P.J., and BROWN, J., concur.