In re Barnhart's Estate, 37 Cal. Rptr. 909

Summary

**Summary:** This case construes a holographic will where the testator devised real and personal property to his daughter with instructions to "turn it over to the State of California as a museum" after her lifetime. The court held that the language created a fee simple devise to the daughter, not a life estate with remainder to the state, because the subsequent words were precatory recommendations rather than mandatory limitations. Regarding the residue from any lawsuit, the court found the testator intended to divide the balance equally among the eight previously named beneficiaries, rejecting the state's claim and the trial court's finding of partial intestacy. The opinion addresses will construction, the use of extrinsic evidence, the distinction between precatory and mandatory language, and the preference against intestacy.

Holdings

1. Paragraph 1 of the will does not create a life estate with remainder to the state. Instead, it devises the real property and personal property (books, tools, machinery) to Patricia Chalgren in fee simple, with a precatory recommendation that she turn them over to the state as a museum upon her death. The bequest of 100 shares of McCord stock to Patricia is an outright gift.
2. The testator intended to bequeath 10% each to Oscar Watson and Glenn Ogg, and the remaining 80% of the net proceeds from any lawsuit to be divided equally among the eight previously named beneficiaries (Patricia Chalgren, Joan Pengra, Imogene Warner, Joanne Cummings, Ed Cummings, Robert Cummings, Wayne Cummings, and William Harris). The state is not entitled to any portion of that balance.

Questions Presented

1. Whether paragraph 1 of the will created a life estate in Patricia Chalgren with remainder to the State of California, or a fee simple devise with a precatory request.
2. Whether paragraphs 7 and 8 of the will disposed of the balance of the net proceeds from any lawsuit, and if so, to whom.

Disposition

reversed