MELVIN, J.
Appeal from a decree of partial distribution.
Marie A. Matthews died -testate. On the 6th of May, 1902, she had made a will by which, among other provisions- regarding her property, she had bequeathed ten dollars to her daughter, Mary Louise Leonard, the mother of Howard Leonard, respondent herein. Mrs. Leonard died in 1907
and in the following year her mother made a codicil by which she referred to and ratified and confirmed her will of May 6, 1902, in every respect save so far as any part of it was inconsistent with the codicil. No reference was made in the codicil to the death of Mary Louise Leonard, daughter of the testatrix, but by that instrument the amount given to Lee R. Matthews, a son of Marie A. Matthews, was increased. Respondent contends that the republieation of the will by the execution of the codicil after the death of Mary Louise Leonard without mention of her son, Howard Leonard, makes him now a pretermitted heir, and the probate court so held. Appellants, on the other hand, are of the opinion that Howard Leonard is entitled to take under the will by right of representation only the amount of the legacy intended originally for his mother. They say that immediately upon the death of his mother respondent became the real legatee under the will; that section 1310 of the Civil Code then became incorporated in and was a part of the will; and that the subsequent republieation of the will by the execution of a codicil merely confirmed the position of respondent as the representative of.his mother under the will. The principal fault with this reasoning is that section 1310 of the Civil Code relates to the time of the death of the testatrix and not to the time of the decease of the original legatee. It is a statute of distribution and has reference to the conditions existing at the time of the death of the maker of the will if the provisions of that instrument remain unchanged. The death of his mother did not have the effect of erasing her name from the testament and writing in that of Howard Leonard in its place, because, of course, he could take the legacy intended for his mother in any case only in the event of his surviving his grandmother.
It seems clear, therefore, that when the will was republished by the execution of the codicil, the legacy to Mrs. Leonard was void as being an attempted gift by will to a dead person, and that the failure to mention Howard Leonard in the republieation made him a pretermitted heir. (Civ. Code, sec. 1307.) That the making and publishing of the codicil amounts to a republieation of the will as amended by the codicil has been held many times. The rule is thus stated in 40 Cyc. 1216, 1217: “The general doctrine is well settled that a codicil executed with the formalities required by statute
for the execution, of wills operates as a repuhlieation of a will, so far as it is not altered or revoked by the codicil, if the intention of the testator is not thereby defeated; and the two are to be regarded as but one instrument, speaking from the date of the codicil.” Our own Civil Code, by section 1287, announces the same rule. In
Payne
v.
Payne,
18 Cal. 292-302, it is held that the republication of the will is tantamount to the making of that will
de novo
and that the new will so made speaks as of the date of republication. The same rule is declared in varying but unmistakable language in such cases as
Estate of Ladd,
94 Cal. 670, [30 Pac. 99];
Estate of Hayne,
165 Cal. 568, [Ann. Cas. 1915A, 926, 133 Pac. 277];
Estate of Cutting,
172 Cal. 191, [Ann. Cas. 1917D, 1171, 155 Pac. 1002], True, it is subject to the exception that the intention of the testator or testatrix must be preserved, if * possible (40 Cyc. 1221), and courts have in many instances refrained from applying the rule regarding republication by codicil with all the severity that would attend the interpretation of a new will by which all previous wills had been set aside.
Estate of McCauley,
138 Cal. 432, [71 Pac. 512], is an excellent example of the application of the exception. In that case it was held that' where valid bequests to charity had been made by the terms of the will, they were not nullified by a republication due to a codicil having no special reference to the said bequests, such repuhlieation occurring within thirty days of the death of the testatrix, notwithstanding the fact that under section 1313 of the Civil Code an original bequest in trust for charitable uses fails if the donor dies within thirty days of the execution of the testament. But in that case, as the learned commissioner very clearly demonstrated in .the discussion of the law applicable to the facts appearing in the record, there was no doubt that the testatrix intended her bequests first made in the will to -stand unaffected by the codicil. In the case a.t bar we cannot say that Mrs. Matthews’ intentions had not changed. They must have changed, because the daughter to whom she had intended to leave a legacy of ten dollars had died. Either she intended the legacy to go to her grandson as the representative of his mother or she forgot him, or, believing that the bequest had lapsed by reason of Mrs. Leonard’s death, she wished to die intestate as to her grandson. In the McCauley case there had been no change in conditions between the time
of the valid bequests to charity and the execution of the codicil. Since by section 1292 of the Civil Code a will may only be revoked by express language, and since by the codicil Mrs. McCauley did not revoke but reaffirmed the valid bequests made in the earlier will, they were held good as against the limiting statute. If, without express revocation of her original will, Mrs. McCauley had made a new will embodying all that the former testament had contained regarding the bequests to charity with other provisions equivalent to those which she chose instead to put in the codicil, the two wills would have been admitted to probate and construed together (Civ. Code, sec. 1296), and the bequests to charity would, of course, have been held valid. Therefore, it was very properly decided in the construction of the McCauley will that the testatrix might do by codicil that which she might have done by a valid will supplemental in character to one previously made.
But in this case the testatrix has omitted expressly to provide for Howard Leonard, the issue of her daughter, either in the original will or the codicil, and it does not appear from either that the omission was intentional. The fact that by force of section 1310 of the Civil Code he might take his mother’s legacy, if the codicil had not been executed, does not answer the requirement of section 1307 of the Civil Code, which according to our interpretation contemplates express provision by the testatrix for
such issue,
unless it be made to appear by the will that the omission was intentional. It is true that all the requirements of section 1307 were satisfied as to the original will, for
at that time
there was no issue of any deceased child, the mother of Howard Leonard being alive. There was provision for
her,
and the statute was satisfied
as to her. (Estate of Barter,
86 Cal. 441-444, [25 Pac. 15].) There was then no obligation to provide for her issue. But the situation had entirely changed when the codicil was made.
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MELVIN, J.
Appeal from a decree of partial distribution.
Marie A. Matthews died -testate. On the 6th of May, 1902, she had made a will by which, among other provisions- regarding her property, she had bequeathed ten dollars to her daughter, Mary Louise Leonard, the mother of Howard Leonard, respondent herein. Mrs. Leonard died in 1907
and in the following year her mother made a codicil by which she referred to and ratified and confirmed her will of May 6, 1902, in every respect save so far as any part of it was inconsistent with the codicil. No reference was made in the codicil to the death of Mary Louise Leonard, daughter of the testatrix, but by that instrument the amount given to Lee R. Matthews, a son of Marie A. Matthews, was increased. Respondent contends that the republieation of the will by the execution of the codicil after the death of Mary Louise Leonard without mention of her son, Howard Leonard, makes him now a pretermitted heir, and the probate court so held. Appellants, on the other hand, are of the opinion that Howard Leonard is entitled to take under the will by right of representation only the amount of the legacy intended originally for his mother. They say that immediately upon the death of his mother respondent became the real legatee under the will; that section 1310 of the Civil Code then became incorporated in and was a part of the will; and that the subsequent republieation of the will by the execution of a codicil merely confirmed the position of respondent as the representative of.his mother under the will. The principal fault with this reasoning is that section 1310 of the Civil Code relates to the time of the death of the testatrix and not to the time of the decease of the original legatee. It is a statute of distribution and has reference to the conditions existing at the time of the death of the maker of the will if the provisions of that instrument remain unchanged. The death of his mother did not have the effect of erasing her name from the testament and writing in that of Howard Leonard in its place, because, of course, he could take the legacy intended for his mother in any case only in the event of his surviving his grandmother.
It seems clear, therefore, that when the will was republished by the execution of the codicil, the legacy to Mrs. Leonard was void as being an attempted gift by will to a dead person, and that the failure to mention Howard Leonard in the republieation made him a pretermitted heir. (Civ. Code, sec. 1307.) That the making and publishing of the codicil amounts to a republieation of the will as amended by the codicil has been held many times. The rule is thus stated in 40 Cyc. 1216, 1217: “The general doctrine is well settled that a codicil executed with the formalities required by statute
for the execution, of wills operates as a repuhlieation of a will, so far as it is not altered or revoked by the codicil, if the intention of the testator is not thereby defeated; and the two are to be regarded as but one instrument, speaking from the date of the codicil.” Our own Civil Code, by section 1287, announces the same rule. In
Payne
v.
Payne,
18 Cal. 292-302, it is held that the republication of the will is tantamount to the making of that will
de novo
and that the new will so made speaks as of the date of republication. The same rule is declared in varying but unmistakable language in such cases as
Estate of Ladd,
94 Cal. 670, [30 Pac. 99];
Estate of Hayne,
165 Cal. 568, [Ann. Cas. 1915A, 926, 133 Pac. 277];
Estate of Cutting,
172 Cal. 191, [Ann. Cas. 1917D, 1171, 155 Pac. 1002], True, it is subject to the exception that the intention of the testator or testatrix must be preserved, if * possible (40 Cyc. 1221), and courts have in many instances refrained from applying the rule regarding republication by codicil with all the severity that would attend the interpretation of a new will by which all previous wills had been set aside.
Estate of McCauley,
138 Cal. 432, [71 Pac. 512], is an excellent example of the application of the exception. In that case it was held that' where valid bequests to charity had been made by the terms of the will, they were not nullified by a republication due to a codicil having no special reference to the said bequests, such repuhlieation occurring within thirty days of the death of the testatrix, notwithstanding the fact that under section 1313 of the Civil Code an original bequest in trust for charitable uses fails if the donor dies within thirty days of the execution of the testament. But in that case, as the learned commissioner very clearly demonstrated in .the discussion of the law applicable to the facts appearing in the record, there was no doubt that the testatrix intended her bequests first made in the will to -stand unaffected by the codicil. In the case a.t bar we cannot say that Mrs. Matthews’ intentions had not changed. They must have changed, because the daughter to whom she had intended to leave a legacy of ten dollars had died. Either she intended the legacy to go to her grandson as the representative of his mother or she forgot him, or, believing that the bequest had lapsed by reason of Mrs. Leonard’s death, she wished to die intestate as to her grandson. In the McCauley case there had been no change in conditions between the time
of the valid bequests to charity and the execution of the codicil. Since by section 1292 of the Civil Code a will may only be revoked by express language, and since by the codicil Mrs. McCauley did not revoke but reaffirmed the valid bequests made in the earlier will, they were held good as against the limiting statute. If, without express revocation of her original will, Mrs. McCauley had made a new will embodying all that the former testament had contained regarding the bequests to charity with other provisions equivalent to those which she chose instead to put in the codicil, the two wills would have been admitted to probate and construed together (Civ. Code, sec. 1296), and the bequests to charity would, of course, have been held valid. Therefore, it was very properly decided in the construction of the McCauley will that the testatrix might do by codicil that which she might have done by a valid will supplemental in character to one previously made.
But in this case the testatrix has omitted expressly to provide for Howard Leonard, the issue of her daughter, either in the original will or the codicil, and it does not appear from either that the omission was intentional. The fact that by force of section 1310 of the Civil Code he might take his mother’s legacy, if the codicil had not been executed, does not answer the requirement of section 1307 of the Civil Code, which according to our interpretation contemplates express provision by the testatrix for
such issue,
unless it be made to appear by the will that the omission was intentional. It is true that all the requirements of section 1307 were satisfied as to the original will, for
at that time
there was no issue of any deceased child, the mother of Howard Leonard being alive. There was provision for
her,
and the statute was satisfied
as to her. (Estate of Barter,
86 Cal. 441-444, [25 Pac. 15].) There was then no obligation to provide for her issue. But the situation had entirely changed when the codicil was made. Howard Leonard had then become the issue of a deceased child. In so far as the requirements of section 1307 of the Civil Code are concerned, the situation must be determined as of the date of the codicil.
(Estate of Hayne,
165 Cal. 568, [Ann. Cas. 1915A, 926, 133 Pac. 277].) If Mrs. Matthews, after the death of her daughter, had made a new will either mentioning or omitting reference to Mrs. Leonard, such a will would not include Howard Leonard and he would be a pre
termitted heir. We see no escape from the conclusion that her republication of the will amounted -to an attempt to bequeath property to a deceased person and that it must be viewed exactly as if a new will had been executed.
Appellant concedes that a legacy to a deceased child leaving issue is void. It was so held in effect by this court in
Estate of Ross,
140 Cal. 282, [73 Pac. 976], although it is to be remembered that section 1310 of the Civil Code as it then existed had no reference to bequests, and could not therefore in any view of the law be applicable to the facts of that ease. It has since been amended to include bequests within its purview. Nevertheless the reasoning of the opinion in that case supports the conclusion that an attempt to bestow property by will upon one who has died prior to the making of the will is of no force and renders the will to that extent void. “A gift by will to one who is dead at the date of the making of the will is void.” (40 Cyc. 1052.)
“A
testamentary disposition may be made to any person capable by law of taking the property so disposed of” (Civ. Code, sec. 1275), and of course, a dead man or woman may not take property
In
Lindsay
v.
Pleasants,
39 N. C. 320, the court was considering a will by which a testator had bequeathed property in equal shares to his wife and nine children, but at the time of the making of the will three of the children had died, and this fact was known to the testator. It was held that the children of the deceased children could not take by force of an act providing that when any person shall bequeath or devise to his child or children, and such child or children shall have died in the lifetime of the testator, the said legacy or devise shall take effect and vest a title to the property described and mentioned in the issue of such child or children—a provision very similar to section 1310 of our Civil Code in its present form. The court said:
‘ ‘
The case before us is not within the' definition of a lapsed legacy or devise, and therefore it is not aided by the above statute. The legislaturb never thought of a case like this, and has not provided for it. It is a devise and bequest to no one
in esse,
or that can ever come
in esse.
It is a void devise and bequest,
ai initio,
of three-tenths of the residuum of the slaves and land and other property, directed to be turned into money, and divided among the widow and the aforenamed children.”
A similar situation was considered in the case of
Doe ex dem. Hearn
v.
Cannon,
4 Houst. (Del.) 20, [15 Am. Rep. 701], and it was held that a devise to a deceased person was a void and not a lapsed devise. Other authorities supporting this rule are
Billingsley
v.
Tongue,
9 Md. 575;
Twitty
v.
Martin,
90 N. C. 643;
Scales
v.
Scales,
59 N. C. 172. In
Stennett
v.
Hall,
74 Iowa, 279, [37 N. W. 332], it appeared that counsel on both sides admitted or at least did not deny that a bequest to one who had died before the execution of the will was void. The invalidity of that clause being virtually conceded, the court did not feel called upon to consider the question of its validity. However, the judgment was affirmed and the case is authority for the rule stated.
We conclude, therefore, that the execution of the codicil republished the will as of the date, of said codicil; that so republished it gave a legacy to a person then dead; that such legacy was void; that respondent was not mentioned in the republication of the will; and that therefore he takes not under section 1310 of the Civil Code, as representing his deceased mother, but under section 1307 of the same code as a pretermitted heir.
The decree from which the appeal is taken is affirmed.
Lorigan, J., Henshaw, J., and Angellotti, C. J., concurred.