In the Matter of the Estate of ANDREW CAROTHERS, Deceased. JOHN E. WITHERSPOON, as Administrator with the Will Annexed of the Estate of Andrew Carothers, Deceased et al., Appellants, v. EARL D. WHITE, Respondent, 161 Cal. 588

SHAW, J. This is an appeal from an order of partial distribution of the estate of Andrew Carothers, deceased, to the respondent, Earl D. White. The decision of the case depends on the meaning and effect of the last will of the deceased. After a clause giving certain specific personal property to his son, William P. Carothers, to his wife, Eleanor Carothers, and to one Joseph A. Lowry, respectively, the will proceeds with the portions here involved, which are as follows:— “I also give and bequeath to my wife and William P.

Carothers my entire farm with all improvements thereon located in the county of Sacramento County, state of California, during the lifetime of my said wife, and at her death said land with all the improvements and proceeds thereof vests absolutely in and is the property of said William P. Carothers, that in case said William P.

Carothers dies without issue his property herein specified becomes the property of John Thomas Carothers, and at his death goes to Elizabeth Wither-spoon. “I further direct at the death of my said wife my daughter Elizabeth Witherspoon shall receive one thousand dollars proceeds from said property and May H. Lowry five hundred dollars.” The testator died on December 13, 1876, leaving surviving as his heirs at law his wife, Eleanor, and three children,— namely, William P. Carothers, John Thomas Carothers, and Elizabeth Witherspoon. Eleanor, the wife, died on February 24-, 1897. On February 14, 1898, William P.

Carothers executed a deed purporting to convey an undivided one-half interest in the farm to said John Thomas Carothers. On March 11, 1899, John conveyed to his wife, Kate A. Carothers, all of his right, title, and interest therein. On September 15, 1904, Kate conveyed to J. J. Burke a part of said farm, a small tract of four acres. This is the land in controversy. The respondent, Earl D. White, is the successor of Burke, and the undivided one half of the four acres was distributed to him, subject to a charge for the legacies to Elizabeth Witherspoon and May H. Lowry, in case they had not been paid previously.

The claim of the respondent is that by the terms of the will, upon the ikath of the testator’s wife, Eleanor, William P. Carothers '¡became vested of the farm in fee, that his deed to John carried the undivided one half thereof to John in fee, and that by the subsequent transfers the respondent became vested of the fee in the undivided half of the four acres. The appellants are the children of Elizabeth Witherspoon. She died in the year 1881. John Thomas Carothers died in the year 1899. William P. Carothers died on June 2, 1902, without issue. The claim of the appellants is that by the will William P.

Carothers was given, first an estate in common with Eleanor Carothers for and during the lifetime of Eleanor, and secondly, a contingent remainder in fee, the condition being that in case he should die without issue the property should go to John Thomas Carothers for his life and that at the death of John it should go to Elizabeth Witherspoon.

Their theory is that the estate of William terminated upon his death without issue, carrying with it all the subordinate estates conveyed by him, including that of John’s wife and that of the respondent, and that as John died before the death af William, upon the death of the latter the entire estate in the farm became vested in the appellants as the heirs of Elizabeth Witherspoon, to whom the will in that event had devised it.

In case of uncertainty arising upon the face of a will, the testator’s intention is to be ascertained from the words of the will taking into view the circumstances under which it was made. (Civ. Code, sec. 1318.) Assuming that the will is uncertain, the circumstances to be considered in this case are as follows: At the time he executed the will the testator was seventy-four years of age. He was then very sick, confined to his bed, and his death was expected soon. It was executed on December 7, 1876, and he died six days afterward. Eleanor Carothers was his childless second wife. She was then aged fifty-six years.

William P. Carothers was a bachelor, then aged forty-two years, John was thirty-nine years old and had one child then living. (She "afterward died before the death of John.) Elizabeth Witherspoon was then forty-six years old, was married, and had three young children. The farm was his place of residence. It contained 158 acres and comprised the bulb of his estate. The will appointed William P. Carothers and Eleanor Carothers as executor and executrix, without bonds. The respondent’s theory is that the clause in the will which reads as follows: “that in case said William P.

Carothers dies without issue his property herein specified becomes the property of John Thomas Carothers, and at his death goes to Elizabeth Witherspoon,” refers solely to the death of William without issue in the lifetime of the widow, Eleanor, so that when he survived Eleanor he became vested of an unconditional and unqualified fee. Upon this theory a complete and accurate statement of the intention of the testator would have required the interpolation of an additional phrase, so as to express it thus, the interpolated words being italicized: “that in case said William P.

Carothers dies without issue during the lifetime of my said wife, his property herein specified becomes the property of John Thomas Carothers, and at his death goes to Elizabeth Witherspoon.” The respondent, in support of this construction, advances two propositions which he states substantially as follows: 1.

A clear devise of a fee will not be cut down by other expressions or clauses contained in the will which do not with reasonable certainty indicate the intent of the testator to cut it down, and if such intent is not thus shown the subsequent clause will be construed so as to make it consistent with the positive devise, or, if necessary, it will be entirely disregarded. 2.

Where a devise is made to one in fee, with a devise over in case of his death without issue, the words “death without issue” are to be taken as relating solely to his death in the lifetime of the testator, or, if the fee is in remainder after the termination of an estate for life or years, then to his death prior to the ending of the particular estate, so that if he survives thereafter he will take an absolute fee. 1. The first proposition is embodied in

section 1322 of our Civil Code. “A clear and distinct devise or bequest cannot be affected ... by any other words not equally clear and distinct.” The words, “and at her death said land with all the improvements and proceeds thereof vests absolutely in and is the property of said William P. Carothers,” considered separately, clearly give William a fee simple estate. They are immediately followed, however, as part of the same sentence, separated only by a comma, by the words, “that in case said William P.

Carothers dies without issue his property herein specified becomes the property of John Thomas Carothers, and at his death goes to Elizabeth Witherspoon.” Passing the second proposition and assuming that this refers to the death of William at any time, this passage, so far as it imposes a limitation upon the fee, is as clear and distinct as .the previous devise of the fee to William.

The word “that” beginning the clause is obviously used in the sense of “but” or “provided that.” The testator’s intention is unmistakably declared to be that in the contingency mentioned, that is, William’s death without issue, the farm should go to John and Elizabeth successively. The rule contended for, as in case of all other rules of

interpretation, is designed to aid in arriving at the intention of the testator as expressed in his will, and it must yield to that intention when it appears with reasonable clearness from the words used. (Burnett v. Piercy, 149 Cal. 190, [86 Pac. 603]; Pavkovich v. Southern Pacific Co., 150 Cal. 46, [87 Pac. 1097].) The subsequent words are sufficiently clear to meet the condition of the rule, and they must be taken as providing a conditional limitation upon the fee previously devised, as they were manifestly intended to do.

It is suggested that these words are not sufficiently certain to comply with the rule because, when taken literally, they appear to give the entire fee in remainder to John, and it is insisted that if John had the fee it would go to his heirs at his death and not to Elizabeth. We do not think there is any foundation for this objection. While the form of the provision is not elaborate and the language is not particularly well chosen, its effect is plain if the entire clause is considered together.

It can mean nothing else than that upon the death of William without issue, John should take, for and during his own life, whatever estates were given to William by the previous clauses, and that upon John’s death the entire remainder would vest in Elizabeth, or her heirs if she were not then living. If William’s death had occurred during Eleanor’s lifetime, of course the estates of John and Elizabeth respectively, would have been in the undivided one half only, while Eleanor lived. 2.

The second proposition is expressed in the Civil .Code as follows: "Words in a will referring to death or survivorship, simply, relate to the time of the testator’s death, unless possession is actually postponed, when they must be referred to the time of possession.” (Sec. 1336.) In this case William’s possession of the fee was postponed until the death of Eleanor, and therefore, if this rule should be applied, the words relating to his death would be taken to mean his death in the lifetime of Eleanor. This

section of the code expresses what appears to be the general rule upon the subject at common law. The respondent relies upon the following statement of the rule by Mr.

Underhill: “The intention of the testator in providing for a devise over after giving a fee in absolute terms is most likely to prevent a lapse; and if the devisee shall survive the testator, he will take an absolute fee simple in the property devised to him, which will not be defeasible on his subsequent death without issue, and the limitation over will be disregarded.” (1 Underhill on Wills, sec. 347.) The author, in the next section, materially modifies this statement of the rule by the following language: “The rule is extremely technical in its character.

It does not apply where there are indications, however slight, that the testator indicated a death without issue occurring subsequent to his death. The rule which construes death without issue to mean death without issue prior to that of the testator is not favored by the courts. The ages and conditions of the primary devisees may be material in determining whether the testator meant death without issue before or subsequent to his death. ...

In such a case, particularly where at the .date of the -execution of the will any of the primary devisees are unmarried, it may fairly be presumed that the testator had in contemplation a future marriage and birth of issue, and that, intending to keep the property in his family, he meant a death without issue to take place after his death.

If, therefore, the primary devisees survive him, they take an estate in fee which is defeasible upon their subsequent death without issue.” (Sec. 437.) (The italics are ours.) In both these passages the author is discussing the effect oi a devise over upon death without issue in cases where there is no intervening life estate to postpone the possession of the contingent remainder, and hence he speaks only of the effect of a death without issue before and after the testator’s death.

But manifestly, where there was such postponement, the same considerations would- apply as to the effect of such death before and after the ending of the life of the testator.

It is contended by both parties here that there is an irreconcilable conflict in the decisions of other jurisdictions upon the question whether words in a will referring to death without issue relate to the time of the testator’s death or the time of actual possession if there is a postponement by reason of an intervening particular estate, or whether they relate to a death after the devise vests in possession, as well as before, and each claims that' the weight of authority is in his favor. We have no decision on the subject in this state.

It is important to notice that the rule as stated in the Civil Code applies only where there are words “referring to death or survivorship, simply.” The will of Carothers does not refer to the death of William “simply.” It refers to his death “without issue,” a contingency which might never happen. We have no provision of our code declaring what the rule should be where the words refer to death upon a contingency. With respect to cases of this kind, speaking of those in which possession is postponed by a particular estate, Mr.

Underhill says: “The general rule is that, in the absence of clear evidence of a contrary intention, a devise over in case of death without issue in the case of a remainder, as with an immediate estate or interest, means a death at any time, and not a death without issue during the life tenancy.

The devisees therefore take a remainder, whether vested or contingent, upon the death of the testator, but which becomes vested in possession and enjoyment only upon the death of the life tenant, and which is then defeasible on their subsequent death without issue.” (Vol. 1, sec. 346, p. 465.) (The italics are the author’s.) Mr. Jarman treats the subject at length by classes or heads.

In one part he considers eases where the reference is to death “simply”; in another a class which he designates by the title, "death, with contingency,” in which he includes the words “death without issue.” This latter class he again" divides into those where the estate is to vest immediately upon the death of the testator, and those where the ultimate gift is postponed to take effect after an intervening estate for life or years.

Speaking of those vesting immediately he says: “The general rule is that where the context is silent, the words referring to the death of the prior legatee in connection with some collateral event, apply to the contingency happening as well after as before the death of the testator.” (2 Jarman on "Wills, 6 ed. 719, *p. 1596.) And in reference to the case of a postponed gift to one, with a devise over in case of his death on a contingency, he says: “It is settled, however, that in this case, as well as where the original gift is immediate, the substituted gift will prima facie take effect whenever the death under the circumstances described occurs.” (Id. 725, *p. 1603.) In view of this well known classification of the different varieties of testamentary gifts where death is referred to, it is at least clear that in adopting

section 1336, there was no intention to provide a statutory rule for the cases where the reference was to death with a contingency. We are therefore left to construe the words of this will with the aid of such light as the authorities afford, independent of

section 1336. A large number of cases are cited by the respective counsel upon the question of the proper application of the words “dies without issue.” We do not deem it advisable to review them. The above quotations from Jarman and Underhill show that the text writers who have given close consideration to the subject favor the theory that they should be held to refer to death after as well as before the death of the testator or life tenant, unless the context or circumstances show the more limited meaning.

A reading of the cases cited rather leads to the conclusion that after all that may be said, the only rule truly applicable to such expressions is that the intention of the testator is the-primary object of search, and that it is to be ascertained by considering the whole will in connection with the nature and character of the testator’s estate and the part of it affected, and such of the surrounding circumstances known to him as may tend to illustrate his meaning.

If all these indicate that the reference is to a death without issue before some particular time or event, effect must be given to the will accordingly. If, on the contrary, they show an intention that death at any timé was to bring about the result stated, then that effect must be given to the words. If there is nothing in the context or in the surrounding circumstances to indicate either, then the ordinary meaning of the words is that the reference is to death at any time it may occur, and that the happening or not happening of the contingency is to determine the result.

Nearly all of the cases cited fall within one or the other of the first two of the alternatives just stated and they were, for the most part, really decided in that way, but in some of them the decision is reached by the arbitrary application of what was considered the correct rule of construction. This would probably account for much of the conflict. Applying the principles of

interpretation above stated, we find little difficulty in ascertaining the testamentary intent. When the testator gave William the remainder after the death of Eleanor, and then proceeded to declare what should become of the property if William should die without issue, he must have had in mind the fact that William was a bachelor forty-two years old and the possibility of his future marriage and the birth of children.

It is more reasonable to suppose that he intended to preserve the estate to Elizabeth Witherspoon or her children, in ease William left no issue, than that he merely desired to avoid a lapse if William died before Eleanor. If the former was his purpose, there can be no doubt that the qualifying clause was intended to limit the fee devised to William and referred to his death at any time. We have also, in the will itself, more than a mere death upon contingency to point out the testator’s meaning.

The clause immediately preceding the reference to William’s death, on its face gave William a remainder in fee in the farm. The farm was therein “specified” as William’s property, and it was all to become “his” in possession upon the death of Eleanor. Knowing William’s age and unmarried state, he then came to consider that William might die without issue after coming into possession of the fee. To provide for this apprehended contingency, he proceeded to declare that if William should die without issue “his property herein specified” should go to John for his life and then to Elizabeth.

The provision would doubtless have been construed to apply to and include the unexpired life estate as well as the fee in remainder, in case William had died before Eleanor, but it also shows that the testator was thinking of the property which would be “his,” that is, William’s, and that he referred to the death of William after the death of Eleanor and after he had come into possession of the remainder “specified” as his in the preceding clause of the sentence, as well as to his death before that event. It is suggested that the last paragraph of the will, which gives legacies to Elizabeth Witherspoon and May H.

Lowry payable at the death of Eleanor out of the proceeds of the farm, shows that the testator supposed that William, if he were living, would then have an indefeasible fee, and that he must have intended that result. The argument is that the payment of these legacies out of a mere defeasible fee would have been a burden on William greater than the testator can be supposed to have intended. We cannot see that this argument is of any force. When the testator made the will all the future possibilities were before him.

If William had died without issue before Eleanor, leaving John surviving, John would have had a vested life estate in the remainder, beginning, as to one half, with the death of Eleanor. At her death the legacies would be payable and the burden upon J ohn if he survived her, would assuredly be as great as it would have been upon William, had he survived Eleanor. Our conclusion is that the estate of William was a fee defeasible upon his death without issue, and that as that event has occurred and John is also dead, the farm is now vested in the heirs of Elizabeth Witherspoon.

Upon a former submission of this cause, the foregoing opinion was filed and the order accordingly reversed. Upon petition of the respondent the judgment of reversal was vacated and a rehearing ordered for the purpose of giving further consideration to the questions involved. The cause was thereupon reargued and again submitted. Upon the further consideration we are satisfied with the opinion and conclusions heretofore announced, and we again adopt the aforesaid opinion as that of the court. The order appealed from is reversed. Henshaw, J., Lorigan, J., and Beatty, C. J., concurred.