By her holographic will Laura E. Kunkler, after disposing of certain articles of personal property to designated legatees, directed that all of the remainder of her estate should be converted into cash, and after the payment of her debts, the money remaining should be “apportioned, appropriated and paid out as follows.” Then followed the names of fourteen legatees to each of whom she left a named percentage of the moneys; to one fifteen per cent, to another five per cent, to another ten, to another four, to another two, and finally “ten per cent to some worthy charity,” the total aggregating one hundred per cent, and thus making a disposition of her whole estate. A codicil to her will, also admitted to probate, provided: “At my death I wish my nephew Eugene L. Duden receive but five ($5.00) dollars from my estate. He will know the reason why. This is my last wish. My other heirs will see that this is carried out. ’ ’ Three legatees named in the will who were strangers in blood to the testatrix died prior to her death. Another legatee, a niece, also died prior to the death of the deceased, leaving no lineal descendants. The attempted legacy of ten per cent to “some worthy charity” is admittedly void. As to all of these legacies the court, upon distribution, declared that they were undisposed of by the will and belonged to the heirs at law. (Civ. Code, secs. 1343, 1386.) Eugene L. Duden, named in the codicil, had been left a legacy of ten per cent. This was revoked by the codicil and the court decreed that this fell also in the residuum undisposed of by will.

Certain legatees related by blood to the deceased died prior to her death leaving lineal descendants. The court decreed distribution of their legacies, amounting in the aggregate to eight per cent of the whole, under section 1310 of the Civil Code, to their lineal descendants. The appellant, one of the legatees, insists that this distribution is erroneous; that all of the legatees constitute a class as residuary legatees and that all the legacies which have failed by reason of death, revocation, or other cause, belong to and should be ratably distributed amongst the remainder of the class. Herein appellant argues that a construction resulting in testacy is to be preferred to one producing intestacy in whole or in part; that the testatrix’s intent is to govern and that her intent clearly was to dispose of all her property to and amongst the named legatees; that they, therefore, constitute a class; that significance attaches to her use of the words “apportioned, appro priated and paid out”; and finally, that the language of the second codicil above quoted revoking the ten per cent legacy to her nephew Eugene sets at rest “any possible doubt as to the foregoing conclusions.” The argument upon this proposition will suffer if stated in any other words than those of appellant’s attorney and it is, therefore, quoted in extenso:

We cannot, however, agree with appellant as to the conclusiveness of the argument here presented. Nor is it as plain to this court as it seems to be to appellant that this language creates a bequest by necessary implication. To the mind' of the court the testatrix disposed of her property by fourteen different legacies to fourteen different legatees. These legatees constituted a “class” only in the sense that it may be said as to any will that all legatees are in a class as separated from the rest of the world or as separated from other legatees in other wills. In no other sense and in no legal sense at all were these legacies a gift to a class, nor were the legatees a class. So plain we take this proposition to be that we hesitate even to quote authority upon the proposition, but in quoting it is certainly enough to set forth the following from Jarman on Wills, 6th ed., p. 432: “A gift to several named persons is not a gift to a class, unless words of contingency are added; as where the gift is to A, B, C & D; ‘if living’; and a gift to several named persons, without more, is not a gift to a class, even if they stand in a common relationship to the testator, as where the gift is to my sons A & B, and, to my daughter C, and if a testator after a gift to children, proceeds to name them, and he specifies their number, as by giving to the five children of A, this is a designatio personorum, and is a bequest to those who are named, or to the five in existence at the time of the will, and the shares of any who dies before the testator lapse.” (See, also, Estate of Hittell, 141 Cal. 432 , [ 75 Pac. 53 ], and Estate of Murphy, 157 Cal. 63 , [ 137 Am. St. Rep. 110 , 106 Pac. 230 ].)

The court’s decree of distribution was correct in holding that the legacies to the strangers in blood who pre-deceased the testatrix became a part of the undisposed residuum of the estate and went to the heirs at law. (Estate of Sutro, 139 Cal. 87 , [ 72 Pac. 827 ].) Equally sound was the court’s conclusion as to the relatives who died leaving lineal descendants. The case is simply one where, as was said in the Estate of Hittell, 141 Cal. 432 , [ 75 Pac. 53 ], the decedent did not anticipate every contingency and changed condition.

The decree appealed from is affirmed.

Lorigan, J., and Melvin, J., concurred.

Hearing in Bank denied.