Van Strien v. Jones

299 P.2d 1, 46 Cal. 2d 705, 1956 Cal. LEXIS 225

• Court: California Supreme Court
• Decided: June 28, 1956
• Docket: L. A. 23858
• Status: Published

Opinions

SHENK, J.

This is an appeal from a judgment for the defendant after a demurrer to the complaint had been sustained without leave to amend.

Henry Robert Ludwig died testate on July 23, 1952. Surviving him were the plaintiff, Frances Van Strien, a daughter by a former marriage, and the widow Mary E. Ludwig who was appointed executrix of the will of her deceased husband. The entire estate was distributed to the widow in accordance with the terms of the will and the decree of distribution became final. The present action was brought against the widow individually alleging that the plaintiff was a pretermitted heir of the deceased and that the defendant held property which came into her possession by way of a constructive trust in the plaintiff’s favor. Since the commencement of the action the defendant Mary E. Ludwig died and Archie R. Jones was appointed executor of her will. References to the defendant will be deemed to be to Mary E. Ludwig.

In her complaint the plaintiff alleges that the defendant’s petition for admission of the will to probate falsely stated that the defendant was the only heir of the deceased; that the defendant made such statement to prevent the plaintiff from knowing of or participating in the probate proceedings; that a similar false statement was made in the defendant’s petition for the decree of distribution and the decree which followed was based thereon; that the plaintiff did not receive a notice of the probate proceedings, and that she did not know of her father’s death until over a year after the decree of distribution was entered.

The main question involved on the appeal is whether the plaintiff is a pretermitted heir under section 90 of the Probate Code. That section provides: “When a testator omits to provide in his will for any of his children, or for the issue of any deceased child, whether born before or after the making of the will or before or after the death of the testator, and such child or issue are unprovided for by any settlement, and have not had an equal proportion of the testator’s property bestowed on them by way of advancement, unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate. ’ ’ If the plaintiff is a pretermitted heir it appears that her complaint alleges sufficient facts to entitle her to relief from the decree of distribution. (See Federal Farm Mtg. Corp. v. Sandberg, 35 Cal.2d 1 [215 P.2d 721]; Gale v. Witt, 31 Cal.2d 362 [188 P.2d 755]; 20 Cal.Jur.2d, Executors and Administrators, p. 110.)

The defendant claims that the deceased by a clause contained in his will disinherited the plaintiff in terms sufficient to satisfy section 90. That clause provides: “If any person who is, or claims under or through, a devisee, legatee, or beneficiary under this Will, or any person who if I died intestate would be entitled to share in my estate, shall, in any manner whatsoever, directly or indirectly contest this Will . . . then I hereby bequeath to each such person the sum of One Dollar ($1.00) only. ...”

It is well settled that where in a will a testator’s child is intentionally omitted or given $1.00 or any other sum, section 90 of the Probate Code is satisfied although the child is not mentioned by name. (Estate of Minear, 180 Cal. 239 [180 P. 535]; Estate of Lindsay, 176 Cal. 238 [168 P. 113]; Estate of Hassell, 168 Cal. 287 [142 P. 838]; Estate of Doell, 113 Cal.App.2d 37 [247 P.2d 580].) The use of such terms as “relatives” and “children” have been held sufficient to designate heirs who might otherwise be pretermitted (Estate of Trickett, 197 Cal. 20 [239 P. 406]; Rhoton v. Blevin, 99 Cal. 645 [34 P. 513]; cf. Estate of Utz, 43 Cal. 200), but such generalities as “anyone who may contest this will” and “any other person” do not include heirs otherwise pretermitted (Estate of Price, 56 Cal.App.2d 335 [132 P.2d 485]; Estate of Cochran, 116 Cal.App.2d 98 [253 P.2d 41]).

In the present case the will, in addition to providing generally for “any person” who claims under the will, also provides that if “any person who if I died intestate would be entitled to share in my estate” should contest the will he bequeaths to such person the sum of $1.00. In Estate of Kurtz, 190 Cal. 146 [210 P. 959], the testator provided: “I . . . disinherit each and all persons whatsoever claiming to be, and who may be, my heirs at law . . . and if any of such parties or such heirs, or any person whomsoever who, if I died intestate, would be entitled to any part of my estate . . . seek or establish or assert any claim to my estate ... I hereby give and bequeath to said person or persons the sum of One ($1.00) Dollar. ...” The portions of that will which have been emphasized are almost identical with the clause in the will in the present ease. In Estate of Dixon, 28 Cal.App.2d 598 [83 P.2d 98], the will also “contained a clause almost identical with the will of the decedent in” the Kurtz case. (See also Estate of Lindsay, supra, 176 Cal. 238; Estate of Hassell, supra, 168 Cal. 287; Estate of Lombard, 16 Cal.App.2d 526 [60 P.2d 1000].) In all of the foregoing cases it was held that children or grandchildren of the testator were not pretermitted where the wills referred to them only as “heirs not herein mentioned,” or “persons claiming to be heirs,” or as in the present ease, “persons who if I died intestate would be entitled to any part of my estate. ’ ’ Such provisions in wills are guards against specific contests of the will, as distinguished from provisions whereby the testator bequeaths $1.00 or other sum to “anyone who may contest this will.” (Estate of Cochran, supra, 116 Cal.App.2d 98.) The wills in the Kurtz and other cases herein cited to like effect make definite and specific reference to persons who, by the laws of succession, would be entitled to participate in the testator’s estate had he died intestate, or had he died testate but failed to mention them in his will or otherwise provide for them. Those eases support the conclusion of the trial court in sustaining the demurrer.

The judgment is affirmed.

Gibson, C. J., Traynor, J., Spence, J., and McComb, J., concurred.