Opinion
9-13-1957
In the Matter of the ESTATE of Nellie NEUBAUER, Deceased. HAZEL HURST FOUNDATION, Contestant and Appellant, Florence Sweeney, Contestant and Appellant, v. Charles EAMES, Petitioner and Respondent, Shriners Hospital for Crippled Children, Los Angeles Orthopaedic Foundation, Crippled Childrens Society of Los Angeles, State of California, Legatees and Respondents.* Civ. 22175.
Harold L. Green, Los Angeles, for appellant Florence Sweeney. Edward Raiden, Los Angeles, for apppellant Hazel Hurst Foundation. Watkins & Charlton, Los Angeles, for respondent Charles Eames.
In the Matter of the ESTATE of Nellie NEUBAUER, Deceased.
HAZEL HURST FOUNDATION, Contestant and Appellant,
Florence Sweeney, Contestant and Appellant,
v.
Charles EAMES, Petitioner and Respondent, Shriners Hospital for Crippled Children, Los Angeles Orthopaedic Foundation, Crippled Childrens Society of Los Angeles, State of California, Legatees and Respondents.*
Sept. 13, 1957.
As Amended Oct. 7, 1957.
Hearing Granted Nov. 5, 1957.
Harold L. Green, Los Angeles, for appellant Florence Sweeney.
Edward Raiden, Los Angeles, for apppellant Hazel Hurst Foundation.
Watkins & Charlton, Los Angeles, for respondent Charles Eames.
ASHBURN, Justice.
Two appeals from order or decree determining heirship. Appellants are Florence Sweeney and Hazel Hurst Foundation for the Blind. Their interests are opposed to each other but both attack the trial court's holding that testatrix Nellie Neubauer died intestate as to 20 per cent of the residue of her estate.
The controversy revolves around a gift of 20 per cent of the residue to said Foundation which appeared in the original will but was later cancelled by testatrix upon the face of the will. Florence Sweeney claims to be entitled as a substitutional legatee upon the theory that the cancellation was a revocation. The Foundation asserts that the order admitting to probate the will bearing changes upon its face was an adjudication that the bequest to it had not been revoked. Secondarily it claims that if that question remained open upon the proceeding for determination of heirship, it should have been held that the gift remained as originally written.
Mrs. Neubauer died on December 31, 1954, leaving a will which was made on September 9, 1954, more than three months and less than six months prior to her death. Her entire estate was separate property. James H. Neubauer, her husband, survived her, being 77 years of age. She left no other heirs or next of kin except a nephew and two nieces.
The dispositive provisions of the will gave a diamond solitaire ring to appellant Florence Sweeney, together with the sum of $1,000; another diamond solitaire ring which testatrix had received from Mr. Joseph Millburn 'I give to _____;' $1,000 to Dr. O. H. Hanson. A legacy of $1,000 to Grace Ridley was also contained in the will at the time of its execution; it was later cancelled as hereinafter explained. Decedent's shares of stock were bequeathed to her husband provided he elected within two months after her death to take the same. He did make a seasonable election to that effect. Decedent's executor was directed to sell '[a]ll the rest, residue and remainder of my estate, of whatsoever nature and wheresoever situated, including all failed or lapsed gifts;' said sale to be made within three months after her death, but not 'directly or indirectly to my said husband nor to Joseph Millburn.' The proceeds were to be held in trust for the purpose of paying $250 a month to the husband during his lifetime. Upon his death the residue was to 'be distributed for general charitable purposes as follows: 40% thereof to the Los Angeles Orthopedic Foundation, Los Angeles, California; 40% thereof to the Crippled Children's Fund, Los Angeles, California; 20% thereof to the Hazel Hurst Foundation, Azusa, California. * * * With the intention of avoiding the statutory prohibition relating to charitable bequests and the invalidation thereof under Probate Code, Section 41, or any and all other similar provisions of the law, I declare that I desire to take advantage of the doctrine set forth in Estate of Davis, 74 Cal.App.2d 357 and Estate of Haines, 76 Cal.App.2d 673, as follows: In the event that any gift, legacy or devise to a charity or charitable organization, be held invalid in whole or in part, then I hereby substitute for such charity as such legatee or devisee my trusted friend, Florence Sweeney of Detroit, Michigan; or if she is deceased, the State of California.' Changes made in the text just quoted give rise to the present controversy.
The will was drawn by testatrix' attorney and executed in his presence. At Mrs. Neubauer's request this was done in duplicate. She entrusted the 'original' to the attorney's keeping and retained in her possession the carbon copy, or 'duplicate.' At some later time, and without the knowledge of the attorney, testatrix in her own handwriting writing cancelled the legacy to Grace Ridley, which appeared on page 2 of the duplicate will, in these words: 'The sum of $1,000.00, I give to Grace Ridley of Detroit, Michigan.' An ink line was drawn through all these words and there was inserted in the blank space between paragraphs the following matter written in ink in the handwriting of testatrix: 'I changed my mind about this--signed--Sept--9-54 Nellie Neubauer.' The trial court ruled that this effected an elimination of this bequest from the will and that it fell into the residue and should be distributed as part of the same. No party to this appeal challenges this ruling in any respect.
In the portion concerning the residue which is quoted above, Mrs. Neubauer at some time after execution of the will cancelled with pen the phrase: '20% thereof to the Hazel Hurst Foundation, Azusa, California,' placed parentheses around it and wrote 'Nellie Neubauer' immediately above it but did not date the change. The cancellation was so heavy as to almost obliterate the quoted phrase but left it still decipherable. The latter portion of the same paragraph (all of which appeared on page 3) was treated as follows: 'With the intention of avoiding the statutory prohibition relating to charitable bequests and the invalidation thereof under Probate Code, Section 41, or any and all other similar provisions of the law, I declare that I desire to take advantage of the doctrine set forth in Estate of Davis, 74 Cal.App.2d 357, 168 P.2d 789, and Estate of Haines, 76 Cal.App.2d 673, 173 P.2d 693, as follows: (In the event that any gift, legacy or devise to a charity or charitable organization, be held invalid in whole or in part, then I hereby substitute for such charity as such legatee or devisee my trusted friend, Florence Sweeney) of Detroit, Michigan; or if she is deceased, the State of California.' This duplicate will remained in the possession of the testatrix from the time of its execution until her death.
The executor filed a petition for probate in the customary form, alleging 'that a copy of said will is annexed to this petition, marked exhibit 'A'.' Stapled to it and marked 'Exhibit A' were a photostatic copy of the altered duplicate will and a typewritten copy of the unaltered original. The body of the petition made no reference to the gift to the Foundation, but did include the following language referring to the Ridley gift: 'That on or about said September 9, 1954, and after the execution of said will, said testatrix drew a line through subparagraph (d) of Paragraph Fifth of said will and inserted a paragraph that is entirely written, dated and signed by the hand of the testatrix herself.' Due notice of hearing was given and the Foundation admits having received the same but it made no appearance.
The court admitted to probate the duplicate will 'in its present form.' The formal order is not clear as to which document was probated, its language being general, but the duplicate will is the only one in the record on appeal and it bears the clerk's endorsement, 'Admitted to Probate Feb 7-1955.' Moreover, all counsel in their briefs expressly or impliedly agree that the duplicate was probated 'in its present form.' In effect the trial judge so found in the instant proceeding. The propriety of so doing appears from Estate of Moeller, 199 Cal. 705, 710, 251 P. 311; Estate of Caruch, 139 Cal.App.2d 178, 183, 293 P.2d 514. We accept it as an established fact. No appeal was taken from the order probating the will and no contest was filed within the statutory time.
Relying upon Estate of Parsons, 196 Cal. 294, 237 P. 744, appellant Foundation argues that the order probating the latered will determined that the gift to the Foundation had not been revoked. Said appellant relies also upon Estate of Salmonski, 38 Cal.2d 199, 207-209, 238 P.2d 966.
Implicit in the arguments of the respective parties are certain correct assumptions. A bequest may be revoked by cancellation on the face of the will (Estate of Martens, 10 Cal.2d 395, 398, 74 P.2d 238; Estate of Wikman, 148 Cal. 642, 645, 84 P. 212; Estate of Finkler, 3 Cal.2d 584, 602, 46 P.2d 149). This is true of a duplicate will as well as any other (Prob.Code, §§ 74, 76). The fact that a will remains in the possession of a testatrix and is found among her effects after her death bearing cancellations upon it face raises a presumption that they were made by her with intent to revoke pro tanto (Estate of Wikman, supra, 148 Cal. at pages 645-646, 84 P. at pages 213-214). That presumption is fortified at bar by the fact that each of the cancellations is accompanied by handwriting of the testatrix.
What then is the effect of probating 'in its present form' the will bearing cancellations upon its face? This question is partially answered by the Parsons case, supra, 196 Cal. 294, 237 P. 744. The primary holding is that the probating of a will which bears changes upon its face is a conclusive adjudication that that document is the last testament of decedent and that any subsequent questioning of that adjudication in any later probate hearing, such as determination of heirship, is a collateral attack and not permissible. It was also held that the changes appearing on the face of the will there under consideration did not effect a partial revocation, and that the trial court erred in holding that it did. Necessarily, this latter phase of the decision controls subsequent cases only when the facts are substantially the same.
The question was whether three $1,000 legacies had been revoked by cancellation. Upon the main question the court said that appellants 'contend that the question of revocation by cancellation, or obliteration of the whole or of a part of a will, must be presented and decided either when the will is offered for probate, or by a proceeding or contest brought within one year after the will is admitted. The contention of the appellants must be upheld. The probate procedure of this state contemplates in the administration of the estates of deceased persons a series of different proceedings, each of which is separate as to the matters embraced within its purview. An adjudication as to each step in this series is intended to be final in its nature, and not subject to review in a subsequent stage of the administration of the estate. An order admitting a will may be appealed from, or the admission of the instrument to probate may be contested, and the validity of the will attacked within one year after such probate, but an attack on the order, or a contest of the validity of the whole or of a part of the the will, is not a direct attack merely because made or instituted in some proceeding connected with the administration of the same estate. [Citations.] The proceeding for the probate of the will is one in rem, instituted for the purpose of establishing the status of a written instrument. [Citation.] The judgment admitting the instrument to probate is therefore binding upon all persons interested in the will who, being constructively notified to appear at the probate, might have come in, and who, had they come in, would have been heard for or against its validity. [Citation.]' (196 Cal. at pages 298-299, 237 P. at page 746.) It was concluded that, it not having been attacked seasonably, 'the instrument admitted is now conclusive evidence as to the intent of the testator.' (196 Cal. at page 300, 237 P. at page 747.) This requires a holding at bar that the order probating the duplicate will with its changes establishes that instrument as the last will of testatrix. But that does not go to the matter of interpretation. On this subject the court further said in the Parsons case, supra, 196 Cal. at page 300, 237 P. at page 747: 'The cases cited and relied on by respondent deal with questions concerning the construction to be placed on wills, and not with matters which can only arise on application for probate in the first instance, or in properly instituted contests. We conclude, therefore, on this phase of the case, that the lower court was in error in denying the petition of the appellants for partial distribution on the ground that the provisions of the will making the bequests for them had been revoked.' This is explained by previous passages in the opinion: 'Across these three paragraphs certain pencil lines or marks appear, which do not obliterate or render illegible any part of the will, and there is no notation or other indication from which the intent of the testator, in making the marks, may be inferred. [196 Cal. at page 297, 237 P. at page 745.] * * * These lines and marks were not attested or noted in any way, and did not obliterate or render illegible or uncertain the plain provisions of the will.' (196 Cal. at page 298, 237 P. at page 746.) '[T]he court made its order in the customary form, unqualifiedly admitting the entire instrument to probate.' (196 Cal. at page 297, 237 P. at page 746.) In other words, the court held that upon the record before it there was no revocation, and that the trial court erred when it held that there was. That ruling was the result of an appraisal and construction of the probated instrument.
That the Parsons case does not preclude later interpretation of the probated document appears from the Estate of Salmonski, supra, 38 Cal.2d 199, 238 P.2d 966. Two instruments, a formal will and a later letter, were admitted to probate as the last will and codicil to last will of decedent. Upon a proceeding for determination of heirship it was held that the terms of the letter-codicil overrode all the dispositive provisions of the formal will and this was sustained on appeal. The court said, 38 Cal.2d at page 207, 238 P.2d at page 971: 'When there is presented for probate one or more instruments claimed to constitute a will, the only question legitimately before the court is whether or not the propounded instrument or instruments constitute a will; and in determining that question the court ordinarily has nothing to do with the construction of the the will, resolving inconsistencies in the disposition of property or interpreting the testamentary provisions.' After reviewing Estate of Parsons to the effect 'that if not so raised [upon the petition for probate], then the order admitting the document as a will is conclusive against any later attempt to invalidate part of the document upon claim of cancellation or revocation,' the court further observed: 'Consistent with these observations, it is clear here that in the absence of an appeal, the order admitting the two documents to probate after contest now stands as a conclusive adjudication of their status as a will and a codicil thereto; but beyond consideration for the determination of that precise issue of what documents constituted the deceased's last will, questions of construction and interpretation in measure of the effect of the two documents one on the other were 'appropriate matters for consideration and determination' in the instant heirship proceeding in resolving the opposing claims for distribution of the estate' (38 Cal.2d at page 208, 238 P.2d at page 972), and, '[a]ccordingly here, the order of admission to probate, conclusive in subsequent proceedings as to the ultimate fact that the two documents stand together as the complete and entire will of the decedent, does not affect the power of the court to determine their import under applicable rules of construction in effecting distribution of the estate as later presented for adjudication.' (38 Cal.2d at page 209, 238 P.2d at page 972.)
Estate of Caruch, supra, 139 Cal.App.2d 178, 293 P.2d 514, presents a close factual analogy to the situtation at bar. A will bearing various changes on its face was probated. It was described in the petition as "a certain document, dated July 17, 1950, purporting to be his last will and testament, together with certain changes, interlineations, deletions, and additions thereto, dated November 1, 1952." The allegations of the petition were found to be true. Upon a proceeding to determine heirship the court found: "That said changes, cancellations and additions on the face of the said witnessed will dated July 17, 1950 constituted a valid codicil to said will" (139 Cal.App.2d at page 182, 293 P.2d at page 517), and ordered that distribution be made in accordance with the will as modified by the holographic changes, cancellations and additions. Nothing was stated in the order probating the will about the holographic changes, and '[c]ertainly there is no language stating that the interlineations are excluded' (139 Cal.App.2d at page 183, 293 P.2d at page 517). The court held: 'The conclusion is inescapable that by the order of June 16, 1953, there was admitted to probate not only the witnessed will, but also that will as modified by the holographic changes.' (39 Cal.App.2d at page 183, 293 P.2d at page 517.) After reviewing Estate of Parsons, supra, and Estate of Moeller, supra, the court further said, 139 Cal.App.2d at page 187, 293 P.2d at page 520: 'The proceedings under section 1080 of the Probate Code are separate and distinct from those to admit the will to probate, In such a proceeding due execution and validity of the will cannot be collaterally attacked. All that the court has power to do in such a proceeding is to interpret the will that has been admitted to probate--it cannot again pass on the questions of due execution or validity. This was the precise holding in Estate of Salmonski, 38 Cal.2d 199, 207, 238 P.2d 966, 971:' and concluded, 'the trial court in this proceeding, although it incorrectly attempted to pass upon the validity of the document, correctly held that the witnessed will, together with its holographic changes, had already been admitted to probate. That being so, and since the document so admitted is not invalid on its face, the order admitting it to probate is conclusive.' 139 Cal.App.2d at page 190, 293 P.2d at page 522.)
Further to the effect that Estate of Parsons, supra, does not preclude interpretation of an altered will after its probate, see Estate of Challman, 127 Cal.App.2d 736, 739, 274 P.2d 439; Estate of Moeller, supra, 199 Cal. 705, 710, 251 P. 311; Estate of Plaut, 27 Cal.2d 424, 427, 164 P.2d 765, 162 A.L.R. 837; Estate of Dunn, 32 Cal.App.2d 240, 243, 89 P.2d 667.
We hold that the probate of Mrs. Neubauer's duplicate will, with the changes apparent on its face, conclusively established that document as her last will and bestament, but that it did not adjudicate the effect of those alterations, did not preclude later inquiry into the question of where the 20 per cent of the residue should go as the result of the cancellation of the bequest to the Foundation. We do not uphold appellant Foundation's argument that 'the admission of the will to probate in its present form validated the legacy to Hazel Hurst Foundation.' Nor is it supported by the Parsons decision. Cancellation of that bequest is plain from the face of the will and the attendant presumption that it was made by testatrix animo revocandi.
The next question is what becomes of that 20 per cent of the residue. Does it go to Florence Sweeney or to the heirs and next of kin of decedent? We are not aided by any extrinsic evidence bearing upon the intention of the testatrix in making these changes and the construction of the will becomes a question of law to be decided independently of the ruling of the trial court. Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825; Estate of Norris, 78 Cal.App.2d 152, 159, 177 P.2d 299; Estate of O'Connor, 130 Cal.App.2d 258, 262, 278 P.2d 748.
As an aid to the discussion we here reproduce the pertinent portions of paragraph Seventh and its changes, as well as that can be done by type: '40% thereof to the Los Angeles Orthopedic Foundation, Los Angeles, California; 40% thereof to the Crippled Children's Fund, Los Angeles, California; Nellie Neubauer * * * With the intention of avoiding the statutory prohibition relation to charitable bequests and the invalidation thereof under Probate Code, Section 41, or any and all other similar provisions of the law, I declare that I desire to take advantage of the doctrine set forth in Estate of Davis, 74 Cal.App.2d 357, 168 P.2d 789, and Estate of Haines, 76 Cal.App.2d 673, 173 P.2d 693, as follows: (In the event that any gift, legacy or devise to a charity or charitable organization, be held invalid in whole or in part, then I hereby substitute for such charity as such legatee or devisee my trusted friend, Florence Sweeney) of Detroit, Michigan; or if she is deceased the State of California.'
The trial court held that this portion of the residue passes to the next of kin as intestate property. That Mrs. Neubauer had no such intention is affirmatively shown by the will: 'I declare that I desire to take advantage of the doctrine set forth in Estate of Davis, 74 Cal.App.2d 357, 168 P.2d 789, and Estate of Haines, 76 Cal.App.2d 673, 173 P.2d 693.' This is her lawyer's language and implies a knowledge of the effect of those decisions construing § 41 of the Probate Code. The doctrine of those cases is that by virtue of the addition of the second paragraph by amendment of 1943, the right of any relative to participate in any bequest which is made within 30 days of testator's death, or in any excess over one-third if made more than 30 days before death, is defeated by a substitutional bequest to some person other than one of the relatives enumerated in the statutes; such a gift to another effectuates the charitable gift to the full extent specified by the testator. See also, Estate of Davison, 96 Cal.App.2d 263, 267, 215 P.2d 504; Estate of Leymel, 103 Cal.App.2d 778, 781, 230 P.2d 48. When testatrix declared her desire to take advantage of the doctrine of the Davis and Haines cases '[w]ith the intention of avoiding the statutory prohibition relating to charitable bequests and the invalidation thereof under Probate Code, Section 41, or any and all other similar provisions of the law,' and followed that with a substitutional gift to 'my trusted friend, Florence Sweeney,' she pointed her finger directly at her husband, nephew and nieces and showed an affirmative intention that they take no part of any of the charitable bequests. This was fortified by a gift to the State of California in the event that appellant Sweeney should not survive testatrix.
So far as the husband is concerned the reason for this is clear. Testatrix gave him outright all her stocks and then placed the residue of her estate, estimated in the petition for probate at $110,000, in trust for his maintenance for the balance of his lifetime, payable at the rate of $250 a month, with a provision for invasion of principal to any necessary extent. So far as the collateral relatives are concerned testatrix made her meaning doubly clear by adding immediately after the quoted language paragraph Eighth, reading as follows: 'Having in mind my nieces and nephew and all other heirs and next of kin, I have intentionally omitted to give, bequeath or devise any of my property to my said heirs or next of kin, knowing that adequate provision has otherwise been made for each of them.' This language is also broad enough to include the husband, an heir.
To this clear showing of testamentary intent to exclude next of kin as takers under the will should be added the strong presumption against intestacy which the law prescribes. 'The rule is state in the Estate of Upham, 127 Cal. 90, 59 P. 315: 'Where the residuary bequest is not circumscribed by clear expressions in the instrument, and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue, whether by lapse, invalid disposition, or other reason.'' Estate of Kelleher, 205 Cal. 757, 761-762, 272 P. 1060, 1062. 'It is not enough that it appears from a clause of the will, simply that the testator intended to make a particular devise of a portion of his estate, which, however, for some reason, failed to be effectual, because, if that were the rule it would apply to every lapsed or invalid bequest, and the residuary clause could never be effectual to carry it. On the contrary, it must appear unequivocally that it was the intention of the testator not only to make a particular devise, but it must further appear from the terms of such devise or from other provisions of the will that it was the intention of the testator that the residuary clause should not, in any event, carry such bequest, should it become inoperative for any reason. The intention to include al ineffectual bequests in the residuary clause is presumed. The intention to exclude must appear from appropriate language evidencing that intention or by clear implication. The making of a will raises a presumption that the testator intended to dispose of all his property. Residuary clauses are generally inserted for the purpose of making that disposition complete, and these causes are always to receive a broad and liberal interpretation, with a view of preventing intestacy as to any portion of the estate of the testator; and this general rule is in harmony with the declaration of our Code that the provisions of a will must be construed, if possible, so as to effect that purpose. Civ.Code, § 1326.' O'Connor v. Murphy, 147 Cal. 148, 153, 81 P. 406, 407. 'Presumptions against intestacy are expecially applicable in construing residuary clauses, since generally they are employed for the purpose of making complete disposition of the testator's property. Constructions leading to intestacy either in whole or in part are not generally favored but will be rejected when the language is reasonably effective to dispose of the entire estate; and liberal interpretation is employed to that end.' Estate of Akeley, 35 Cal.2d 26, 29, 215 P.2d 921, 922. See also, Estate of Lefranc, 38 Cal.2d 289, 296, 239 P.2d 617; Estate of Northcutt, 16 Cal.2d 683, 690, 107 P.2d 607; Prob.Code, § 126.
It being clear that testatrix did not want her husband, nephew and nieces, or any of them, to take any part of any or all of the charitable bequests, the appellant Sweeney immediately appears to be a logical possible taker. The will suggests no other place for this 20% to go. Scrutiny of the changes in the will supports the claim of appellant Sweeney. The elimination of the gift to the Foundation is enclosed in parentheses; likewise the language of the substitutional gift to Sweeney. It is a fair inference that these things were done at the same time and that the testatrix, when cancelling the gift to the Foundation had Sweeney in mind. She did not revoke the substitutional bequest to her but gave emphasis to it by enclosing it in parentheses and by underlining the words 'a charity' and 'then I hereby substitute.' True, the language of substitution--'in the event that any gift * * * be held invalid in whole or in part' does not quite express a gift to Sweeney in lieu of one voluntarily revoked by testatrix, but there is no other place for this portion of the residue to go without violating positively expressed intention of Mrs. Neubauer.
The constructional rules designed to avoid intestacy, above quoted, lead us into the field of implied gifts. That doctrine is thus stated in Brock v. Hall, 33 Cal.2d 885, 206 P.2d 360, 362, 11 A.L.R.2d 672: 'The implication of gifts in wills rests upon the primary rule of construction that the duty of the court in all cases of interpretation is to ascertain the intention of the maker from the instrument read as a whole and to give effect thereto if possible, and it is well settled that, where the inention to make a gift clearly appears in a will, although perhaps imperfectly expressed, the court will raise a gift by implication.' [33 Cal.2d at page 887, 206 P.2d at page 363.] * * * 'When the intention to make a gift clearly appears from the instrument taken by its four corners and reas as a whole, considering its general scheme, the property involved, and the persons named as beneficiaries, the gift may be implied. Estate of Franck, 190 Cal. 28, 31, 210 P. 417. Although the court may not indulge in conjecture or speculation simply because the instrument seems to have omitted something which it is reasonable to suppose should have been provided, a gift will be raised by necessary implication where a reading of the entire instrument produces a conviction that a gift was intended.' [33 Cal.2d at page 889, 206 P.2d at page 363.] '* * * There is no merit in the trustor's argument that, even though an actual, existing intention appears on the face of the instrument, the court may not imply a gift from a construction of the entire instrument, but must find some specific clause which may be construed as operating to make a gift. This argument is obviously contrary to the decided cases and, if accepted, would render the doctrine of gifts by implication unnecessary. [Citations.] Accordingly, in ascertaining the intention of the trustor the court is not limited to determining what is meant by any particular phrase but may also consider the necessary implication arising from the language of the instrument as a whole.' (33 Cal.2d at pages 889-890, 206 P.2d at pages 363, 364.)
We are convinced that it appears from a consideration of the dominant purpose of the testatrix, gathered from the four corners of the will, read in the light of the strong presumption against intestacy, that the testatrix intended and therefore made an implied gift of this 20 per cent of the residue of her estate to appellant Sweeney.
Order reversed and cause remanded to lower court for further proceedings not inconsistent with this opinion.
MOORE, P. J., and FOX, J., concur.
Hearing granted; McCOMB, J., not participating. --------------- * Opinion vacated 321 P.2d 741. 1 Hereinafter designated as Foundation. 2 Prob.Code § 41: 'Restrictions: [Time of executing will: Amount of gifts: Passage of property given contrary to law]. 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, descendant 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, and if they do, a pro rata deduction from such devises and legacies shall be made so as to reduce the aggregate thereof to one-third of the estate. All property bequeathed or devised contrary to the provisions of this section shall go to the spouse, brother, sister, nephew, niece, descendant or ancestor of the testator, if and to the extent that they would have taken said property as aforesaid but for such devises or legacies; otherwise the testator's estate shall go in accordance with his will and such devises and legacies shall be unaffected. '[Takers of property: Persons not relatives: Amount taken.] Nothing herein contained is intended to, or shall be deemed or construed to vest any property devised or bequeathed to charity or in trust for a charitable use, in any person who is not a relative of the testator belonging to one of the classes mentioned herein, or in any such relative, unless and then only to the extent that such relative takes the same under a substitutional or residuary bequest or devise in the will or under the laws of succession because of the absence of other effective disposition in the will.' Section 43 provides: 'Nothing in this article contained shall apply to bequests or devises made by will executed at least six months prior to the death of a testator who leaves no spouse, child, grandchild or parent, or when all of such heirs, by a writing executed at least six months prior to his death, shall have waived the restriction.'