(San Francisco City & County Super. Ct. No. PES-07-289708). Hon. John Dearman.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PUBLICATION
Under a will executed in 1961, Jean Marie Mooney left the bulk of her estate to her father or, if he predeceased her, to her two sisters, Doris and Lucile, in equal shares. By the time Mooney passed away in 2007, her father and both sisters had predeceased her. Both sisters were survived by adult children. This brought California's antilapse statute, Probate Code*fn1 section 21110, into play. The probate court construed section 21110 to require that each of the surviving adult children of Doris and Lucile receive an equal, one-seventh share of Mooney's estate. Lucile's children appeal, contending that they were each entitled to receive a one-sixth share of the estate and Doris's four children were each entitled to a one-eighth share. We agree, and reverse the probate court's order.
Mooney died on January 17, 2007. Her will, which was executed in 1961, devised certain specific items of real and personal property to her nieces and nephews, and devised the residue of her estate as follows: "I hereby give, devise and bequeath all of the rest, residue and remainder of my property, of whatever kind or nature and wheresoever situate, to my father, EDWARD J. MOONEY, provided, however, if he should predecease me, or die as a result of the same sickness, accident or calamity that may befall me, then and in that event, I hereby give, devise and bequeath such rest, residue and remainder of my property in equal shares to my two sisters, LUCILE MAY SCULLY and DORIS MURPHY." Decedent's father and both of her sisters predeceased her.
Under the will, the provision for Mooney's sisters was not conditioned on their surviving her, and no alternate disposition was provided for in the event they did not survive her. Under section 21110, the antilapse statute, if a bequest is made to kindred, and is not conditioned on survivorship and is not subject to an alternate disposition, and the beneficiary predeceases the transferor, the bequest passes to the predeceased beneficiary's issue. The only issue before us is how to divide Mooney's residual estate among the children of her two sisters.
Decedent's sister, Doris Murphy, is survived by four adult children: Thomas Murphy, Daniel Murphy, Edward Murphy, and Nancy Danish. Decedent's sister, Lucile May Scully, is survived by three adult children: Anne Scully, Charles Scully II, and Jean Bordon. Neither Doris Murphy nor Lucile May Scully left any issue of deceased children. Jean Bordon has disclaimed her interest in the estate in favor of her adult son, Bryan.*fn2 Jean Bordon has no other children or issue of deceased children.
On November 20, 2007, Anne Scully and Nancy Danish, as administrators with will annexed, filed their petition for final distribution. The petition proposed that one-half of the residue of the estate be distributed equally among Doris's four children (one-eighth each) and one-half of the estate be divided equally among Lucile's three children (one-sixth each). In an accompanying points and authorities, counsel for the administrators argued that the proper application of sections 240 and 21110 required this distribution.
Based on its independent reading of the antilapse statute, the court directed the administrators to file an amended proposed distribution providing that the residue be distributed equally among Doris's and Lucile's children (one-seventh each). An unopposed motion by Anne Scully, Charles Scully II, and Bryan Bordon to set aside the court's order was denied.
This timely appeal followed.
Section 21110, subdivision (a) provides in relevant part as follows: "[I]f a transferee . . . fails or is treated as failing to survive the transferor . . . the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240." For purposes of section 21110, "transferee" is limited to "a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor." (§ 21110, subd. (c).) Subdivision (a) does not apply if the instrument expresses a contrary intention or makes a substitute disposition. (§ 21110, subd. (b).)*fn3
All of the conditions for the application of section 21110 are present here: (1) the testator attempted to devise the residue of her estate to her kin, (2) the intended devisees predeceased the testator, and (3) the will fails to evidence the testator's intent in that event. In those circumstances, section 21110 replaces the decedent's attempted devise to her sisters with a substitute disposition to her sisters' descendants. The section applies to residuary beneficiaries, as well as other types of beneficiaries. (Estate of Walker (1925) 196 Cal. 323, 331--332 [construing predecessor statute].) Section 21110 is known as an "antilapse" statute because the attempted devises protected by it would otherwise lapse and the property would pass instead by intestacy: "Antilapse statutes serve an extremely important function in the law, for they give effect to strong human impulses in some cases and, in others, to what are perceived as highly probable intentions. They prevent unintended disinheritance of one or more lines of descent, by presumptively creating an alternative or substitute gift in favor of the descendants of certain of the decedent's predeceased relatives." (Halbach & Waggoner, The Upc's New Survivorship and Antilapse Provisions (1992) 55 Albany L.Rev. 1091, 1099.)
This case focuses on the meaning of the statutory directive that "the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240." Section 240 provides as follows: "If a statute calls for property to be distributed or taken in the manner provided in this section, the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and ...