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In re Estate of Tolman

February 11, 2010


APPEAL from an order of the Superior Court of Los Angeles County. Michael J. Levanas, Judge. Affirmed. (Los Angeles County Super. Ct. No. SP007448 c/w BP109784).

The opinion of the court was delivered by: Lichtman, J.*fn5


Deborah C. Tomlinson, granddaughter of decedent Nellie G. Tolman, appeals from the order denying her petition to determine persons entitled to distribution from Tolman's estate. Applying Probate Code section 21110, an anti-lapse provision, the trial court concluded that Tolman's grandson Michael Jennings (respondent) was among those entitled to inherit the residue of the estate, as issue of his mother Betty Jo Miller, the predeceased residual beneficiary.*fn1 The court rejected appellant's contention that the will reflected Tolman's controlling intent that Jennings and other issue of Miller not take from the estate. We affirm the order.


The record reflects that Tolman was married to Lloyd E. Tolman, who precedeased her, and with whom she had two children, Lloyd C. Tolman and Betty Joe Miller. Appellant and Laurie Onan are the surviving children of Lloyd C. Tolman, and thus granddaughters of the decedent. Respondent is the surviving son of Miller, and grandson of the deceased. Additionally, Tolman was survived by three great-grandchildren, who are children of respondent's deceased sisters and grandchildren of Miller (hereafter Miller's grandchildren).*fn2

Tolman's 1981 will bequeathed all of her property to her husband. It provided, however, that if he predeceased her, her granddaughters, appellant and Onan, each would receive $10,000, and the remainder of the estate would go to Tolman's daughter, Miller. The bequests to appellant and Onan each provided that if the designee predeceased Tolman, "this gift shall lapse." No such proviso, or any alternative disposition, appeared in the residual bequest to Miller.

Paragraph seven of the will stated: "Except as otherwise specifically provided for herein, I have intentionally omitted to provide herein for any of my heirs who are living at the time of my demise, and to any person who shall successfully claim to be an heir of mine, other than those specifically named herein, I hereby bequeath the sum of ONE DOLLAR ($1.00)."

As stated, Miller died before Tolman, requiring resolution of the proper disposition of Miller's residual bequest. The named executor being deceased, appellant and respondent each filed petitions for probate of the will and for letters of administration with the will annexed. Appellant's petition estimated the value of the estate's property at slightly under $1 million.

Shortly after filing the petition for probate, appellant filed under section 11700 a petition to determine persons entitled to distribution. The petition alleged that neither Jennings nor Miller's grandchildren were entitled to inherit under the will, which did not provide for them. However, they were asserting entitlement under section 21110, subdivision (a). That subdivision provides that if a transferee by will fails to survive the transferor, "the issue of the deceased transferee take in the transferee's place." Subdivision (b) of section 21110 qualifies subdivision (a) by providing: "The issue of a deceased transferee do not take in the transferee's place if the instrument expresses a contrary intention or a substitute disposition. . . ."*fn3 Appellant alleged that the will's paragraph seven expressed Tolman's intention that an heir whom she had not named in the will should not inherit.

In its statement of decision, the trial court ruled in favor of respondent, and Miller's grandchildren. The court first observed that Tolman's gift of the residue to Miller, unlike her gifts to appellant and Onan, did not provide for lapse should Miller not survive Tolman. This omission did not "express an intention that the issue of Betty Jo Miller not succeed to her share."

It had been stipulated, the court noted, that Miller's descendants were "heirs." Appellant accordingly asserted that paragraph seven of the will barred them from taking pursuant to it, while the descendants argued that their right to take was not as heirs, but was solely based on their "being the lineal descendants of a deceased devisee, Betty Jo Miller." The court stated the issue as being whether paragraph seven was sufficient, under section 21110, subdivision (b), to preclude Miller's descendants from taking as lineal descendants.

The trial court concluded that paragraph seven did not have that effect. The court relied chiefly on two cases, similar to the present one, under former section 92, the predecessor of section 21110 - In re Pfadenhauer's Estate (1958) 159 Cal.App.2d 686 (Pfadenhauer), and Larrabee v. Tracy (1943) 21 Cal.2d 645 (Larrabee).*fn4 The court ruled that paragraph seven "did not contain specific language that would be sufficient to bar a lineal descendant's right to inherit as the issue of a named deceased beneficiary," and therefore respondent and Miller's grandchildren should take under section 21110. The order denying appellant's petition followed.


Appellant contends that the trial court erred as a matter of law in its construction and application of paragraph seven, as not manifesting Tolman's intent to preclude respondent and Miller's grandchildren from taking in Miller's place, under section 21100. In support, appellant also argues that cases decided under former section 92, on which the court relied, were inapplicable, because the former statute provided for an "absolute" right ...

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