Chapman v. Whitcomb
Chapman v. Whitcomb
Opinion of the Court
This is an appeal from an order construing the will of Elizabeth Whitcomb, deceased. Boiled down the pertinent parts of the will read as follows: “I am possessed of certain liquid bonds, mortgages, stock and cash on hand, from which funds can be readily realized for payment,” etc. [The will then proceeds to provide bequests to various of her friends and to her sister. Then in the sixth paragraph it continues as follows:] ‘‘The remainder of the estate, derived from the sale of my home place at 337 So. Harvard Blvd.,
In the Estate of Farelly, 214 Cal. 199 [4 Pac. (2d) 948], reference is made to section 1326 of the Civil Code which provides that “of two modes of interpreting a will that is preferred which will prevent a total intestacy”, and this reference is followed by the statement “that the same rule has been applied to partial intestacy”, citing O’Connor v. Murphy, 147 Cal. 148 [81 Pac. 406]. In Estate of Spreckels, 162 Cal. 559 [123 Pac. 371], it is said: .“Where a will may be reasonably interpreted in two ways, one of which results in intestacy, while the other leads to an effective testamentary disposition, the interpretation which will prevent intestacy is to be preferred.” Also, see, Estate of O’Gorman, 161 Cal. 654 [120 Pac. 33], and Estate of Olsen, 9 Cal. App. (2d) 374 [50 Pac. (2d) 70.]
It is apparent from the will itself that except for the bequests of personal effects the testatrix contemplated a distribution of her entire estate in the form of cash. The intent .of the testatrix to distribute fractional parts to numerous beneficiaries could not from a practical standpoint be carried out except by distributions in cash, and this intent is further manifested by the provision in the will for the sale of her home.
The fact that the words “remainder of the estate” are followed by the words “derived from the sale of my home . . . and whatever other securities remain” does not restrict the residuary clause so as to exclude the fund above referred to. The testatrix inserted a comma after the phrase “re
Judgment reversed.
Wood, J., and McComb, J., pro fern., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.