Estate of Hoytema

This is an appeal from a decree of partial distribution. The only appellants are the four children of decedent's deceased sister, Anna Mathieson, residents of the kingdom of Denmark, who claim that under a writing admitted to probate as the last will of decedent they are entitled to all of the estate of deceased except two legacies of five hundred dollars each. The lower court concluded that such writing was insufficient as a will or otherwise to dispose of the estate of decedent except as to the said two legacies, and that as to all of the estate over one thousand dollars so disposed of the decedent must be held to have died intestate. The effect of the decision is that except as to one thousand dollars to be paid on the two legacies, the estate of decedent will go, one-third to Hans Peter Nelson, surviving brother of decedent; one-third to the three surviving children of her deceased sister, Bena G. Edwardson, one of whom is named Agnes; and one-third to the appellants here, the surviving children of her deceased sister Anna Mathiesen, these being all of her heirs at law.

The record is such that we are bound by the finding of the lower court as to the contents of the will, which, the bill of exceptions shows, was entirely written, dated, and signed by the hand of the decedent and was almost entirely in the Danish language. The trial court by a finding unquestioned by any specification of insufficiency, declared the same to be in the words and figures following:

"San Francisco, October 5, 1915.

"I am writing these lines in case I should meet with an accident or in any other way die then it is my wish if my brother Hans Peter Nelson is alive send this letter to him. Should he be dead then it is my wish that my brother's daughter Emma and my dead sister Bena's daughter who lives in Chicago, her name is Agnes, shall together sell all my property and divide equally between my dead sister Anna's children by the name Engeborg, Anna, Alfrida, and Otto, living in Copenhagen and Nakskov. It is my wish that my niece Emma Nelson receive $500. extra for her taking care of me. It is also my wish that my friend Mrs. Rosa Friis shall be given $500.

"MRS. JENNIE HOYTEMA, "94 Sanchez Street.

"P. S. — My safe deposit box is in the Humboldt Savings Bank No. 295."

The niece, Emma Nelson, referred to herein is the daughter of the brother, Hans Peter Nelson, who survived decedent.

The lower court was of the opinion that the testamentary disposition so apparently made in favor of the children of the dead sister, Anna, was conditioned upon the death before her own death of her brother Hans Peter Nelson. [1] This view was upheld by the decision of Department Two of this court, the opinion being written by Mr. Justice Lennon, and upon mature consideration we believe this to be the correct view. We recognize that this construction results in almost total intestacy, in view of the fact that her brother survived decedent, and also that [2] constructions leading to intestacy, total or partial, are not favored, and will be rejected when the language used reasonably admits of a construction that renders the will effective as to all the property of the decedent. [3] It is also an elementary rule in the construction of wills that the language used must be liberally construed with a view to carrying into effect what the will as a whole shows was the real intent of the testator. This intent, however, must be found in the language used in the will, taking into view in cases of uncertainty arising upon its face the circumstances under which it was made. (Civ. Code, sec. 1318) [4] 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 the case at bar we have a testatrix whose next of kin were a brother and the children of two deceased sisters. Her brother was her nearest relative. No reason whatever appears why in disposing of her property she should discriminate against him in favor of children of one or both of her deceased sisters. Certainly in her very informal will she does not do so in plain and unambiguous terms. To the contrary, her first thought is of him, and her first expression of desire is "it is my wish if my brother, Hans Peter Nelson is alive, send this letter to him." No express direction or desire as to what is to become of her property in that contingency or what he is to do in the matter appears. It is as though in the mind of the testatrix this was to be the end of the whole matter. If we were at liberty to resort to conjecture as to the intent we might well conclude from the language that she thought she was giving the property to him in this contingency or that he would then take the property as her nearest relative. It is only "should he be dead" that she has any desire to express in regard to the disposition of her property, and her desire in that contingency is that her dead brother's daughter Anna, and her dead sister Bena's daughter should sell the property and dispose of it in the way indicated. Appellants seek to make the primary object of the instrument the distribution of the property in any event in the manner specified in the portion commencing "should he be dead," and to do this find it necessary to construe the directions to Emma and Agnes as being intended as applicable to the brother in the event that he survived decedent, although no such idea is expressed. It is sufficient to say that no such intention is expressed with reasonable certainty, and that under the circumstances any such conclusion would be based solely on conjecture. As was said in the department opinion: "Only through speculation and conjecture may the construction contended for by appellants be confirmed. And this cannot be countenanced in view of the cardinal rule to the effect that in the interpretation of wills it is not the probable intent which may have existed in the mind of the testatrix which prevails, but only that which is expressed in the language of the will. (Estate of Blake, 157 Cal. 448, [108 P. 287].) We are satisfied that the appellants cannot fairly be held to take anything under the will. By the decree they are adjudged their rightful share as heirs of deceased. No objection is made by them as to the allowance of the two legacies of five hundred dollars each, a matter apparently settled by the decree. All parties to the estate have acquiesced in their allowance.

It may be noted that appellants claim that the translation of the will embodied in the court's finding is not entirely correct, and append to their brief what they call a "literal translation." While we are bound by the translation found, we do not think that the so-called "literal translation" would materially help appellants. In the same connection respondents suggest that, properly translated, the provision as to the disposition of the property by Emma and Agnes is that they "shall together sell my property and share with [instead ofdivide between] Anna's children, the Danish word "udele" used meaning "share" and not "divide." This would produce the very natural and reasonable conclusion that even had the brother predeceased the decedent, appellants under the will could take only one-third of the property, and would entirely explain the use of the word "extra" in the five hundred dollar bequest to Emma Nelson.

The decree is affirmed.

Lennon, J., Wilbur, J., and Melvin, J., concurred.