Freyermuth

I concur in the result but believe that Estate of Glass, 164 Cal. 765 [ 130 P. 868 ], is inconsistent therewith and should be overruled. The essence of the holding in that case is that a devise to a named person’s estate is not proper because the word “estate” cannot be construed to mean “heirs or devisees.” In the case at bar the majority determines, and I believe properly so, that the word “estate” should and must be interpreted to mean “heirs or devisees.”

I concur in the judgment solely on the ground that upon the record the trial court was warranted in finding as a fact that the testator in using the language, “To Otto Speckter or his Estate, ’ ’ intended to make an alternative devise—a devise to Mr. Speckter if he survived the testator but in the event of his demise prior to the death of the testator, then to the heirs at law of Speckter.

I agree with the majority opinion of the District Court of Appeal of the First Appellate District, Division Two (Estate of Brunet (Cal.App.) [ 200 P.2d 59 ]) in holding that “an estate is not a person or entity which can take under a will” as contemplated by the provisions of section 92 of the Probate Code and the decisions in this state construing that section. The majority opinion cannot be reconciled with the holding in the Estate of Glass, 164 Cal. 765 [ 130 P. 868 ]. I would therefore reverse the judgment.

By a holographic will dated October 1, 1941, the testator devised “To Otto Speckter or his Estate The Property at Clear Lake & Improvements on same.” Speckter, who was not related to the testator, died on July 1, 1943. The testator died on May 14, 1945. In the course of administration the property at Clear Lake was sold, and the decree of distribution awarded the proceeds of the sale “to the heirs or devisees of Otto Speckter, deceased, subject to the administration of his estate.” Appellants, executors and legatees under the will, appeal from the decree of distribution.

The only question presented on this appeal is whether the devise to “Otto Speckter or his Estate” lapsed by reason of Speckter’s death before the death of the testator. If a devisee who is not kindred of the testator dies during the testator’s lifetime, “the testamentary disposition to him fails, unless an intention appears to substitute another in his place. ’ ’ (Prob. Code, § 92.) The determination whether the devise lapsed therefore depends upon whether the testator intended to substitute another for Speckter in the event he predeceased the testator and, if the testator had such intention, whether he…