OPINION
PER CURIAM.
The opinion filed July 2, 1926, is modified to read as follows
W. J. Dickey died on the 5th day of July, 1912. He left him surviving his wife, Marchisi Josephine Dickey, and two minor sons, William James Dickey, Jr., and Robert Bernard Dickey. This plaintiff was not his son, but was the son of his wife by a former marriage and had had his name changed to Dickey. The decedent left a will. By the terms of the will certain specific bequests were made and then as to the balance of the property the will provided that it should pass to his executors, Bernard Faymonville, E. A. Walrond, and M. B. Harris, as trustees. By the terms of the trust the trustees were to hold the property until the two minor sons should reach the age of 21 years. Thereupon the remainder of the estate should pass as follows: To his wife an undivided one-half part thereof, and to each son an undivided one-fourth thereof. The will further provided that:
"In the event of the death of my said wife during the life of this trust, then the undivided one-half part that would otherwise have gone to her shall go to her heirs at law."
The language of the will was carried into the decree of distribution. After the death of W. J. Dickey his widow intermarried with Frank P. Roberts. Thereafter, on the 28th day of January, 1923, she died, leaving a last will and testament. At the time of her death William James Dickey, Jr., and Robert Bernard Dickey, the sons of the trustor, were both living and both were under the age of 21 years. Her son, Frank Fletcher Dickey, and her husband, Frank P. Roberts, also survived.
Frank Fletcher Dickey commenced an action to quiet title, and in his complaint he made the surviving trustees defendants and also included Frank P. Roberts as an individual, Frank P. Roberts as the executor of the estate of Marchisi Roberts, deceased, and he also included William James Dickey and Robert Bernard Dickey. The defendants answered and a trial was had in the trial court before the court sitting without a jury. Among other things, the trial court made a finding as follows:
"That as heirs of the said Marchisi Roberts, deceased, the said plaintiff and the defendants Robert Bernard Dickey, William James Dickey, and Frank P. Roberts are the owners subject to the trust hereinafter mentioned in equal shares of the undivided one-half of the property of said W. J. Dickey, deceased. ***"
Being dissatisfied with the portion so decreed to him, Frank P. Roberts took this appeal under section 953a of the Code of Civil Procedure. The appellant presents one point, and that is that as a conclusion of law the trial court should have entered a decree finding that appellant is the owner of an undivided one-third of the property, that would have gone to Mrs. Roberts under the will of W. J. Dickey, deceased, if she had not died during the life of the trust, and that the three children of Mrs. Roberts are the owners of the remaining two-thirds in equal proportions.
There is no doubt that in this state a testator has the right to dispose of his property by will as he sees fit. It is not contended that we have any statute, pertinent to the facts of this case, restraining him from doing so or directing to whom and in what amount the property shall be devised or bequeathed. Any and all such pertinent statutes were enacted for the purpose of carrying into effect, and to enable the court to ascertain, the intention of the testator. Estate of Murphy, 157 Cal. 63, 69, 106 P. 230, 137 Am. St. Rep. 110. In the will of W. J. Dickey he named definitely and specifically the beneficiaries. Having done so, and to provide what should be done if any one of the beneficiaries died during the life of the trust, he named again each one and provided that in the event of the person’s death the share devised to said beneficiary should "go to his (or her) heirs at law." That phrase is used in the clause under attack and it is used in reference to the possible death of each son and then as to the possible death of both sons. As the testator stated in his will, he did not make any direct devise or bequest to this plaintiff because he felt confident that the testator’s wife would provide for the plaintiff. There is nothing showing that the testator ever contemplated that his widow would remarry or, if she did, that she would marry the appellant.
W. J. Dickey was not inclined to deal loosely with his bounty. Thus he did not directly devise anything to his stepson, this plaintiff, but confined his bounty to his own sons and his wife. Although by his will he disposed of separate property aggregating in the neighborhood of $500,000, he did not give to those outside of his sons and wife but $25,000, and that sum did not include a single personal bequest. It is likewise clear that in the expression "his (her) heirs at law," the testator had no individual specially in mind. At the date he made the will the possible heirs of his wife were: (1) Her three sons; (2) the child or children of each one of the sons; (3) the son’s child or children. Contemplating these contingencies, it is clear that in certain events any certain individual might or might not be an heir, and that, under the law of succession, the amount would be as varying as the event or events.
It thus appears that from the words of the will, taking into view the circumstances under which it was made, that the persons who were to take after the death of Mrs. Dickey during the life of the trust are definitely and certainly designated, but that as to the proportions in which they were to take, nothing is specifically mentioned. Especially is it true that there is nothing expressly to the effect that the heirs shall take otherwise than in equal shares.
Contending that the testator used the word "heirs" without other words of qualification, and that the terms were used as words of donation, the appellant cites and relies on section 1386 and section 1334 of the Civil Code. The first is the general statute of succession. The other section, omitting irrelevant parts, provides:
"A testamentary disposition to ‘heirs’ *** of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the title on succession."
If that rule is followed, then we are assuming that the testator intended by his will to provide that, under the circumstances which we have recited, the third husband of the testator’s widow was to receive a larger portion than the portion which each of the testator’s sons would receive and a larger portion than the testator’s stepson would receive. But there is nothing on the face of the will showing any such intention.
The respondent controverts the appellant’s contention and makes the claim that the above sections are not applicable and that the "heirs at law" constitute a class and each one in the class should share and share equally. The trial court took the latter view and entered its judgment to the effect that the heirs took in equal shares. In doing so we think there was no error. In Estate of Wilson, 65 Cal.App. 680 at page 690, 225 P. 283, 287, the court quotes with approval as follows:
"In construing a testator’s will as executed by him the court may ascribe to the testator, so far as his language permits it, the common impulses of human nature."
We think it can be said, taking into view all of the circumstances under which the will of W. J. Dickey was made, that it clearly appears that it was not his intention to provide in his will, by using the words "her heirs at law," that his wife’s third husband should, as her heir, take a larger portion than each of his own sons or his stepson, also heirs of the testator’s wife, should take. It was not a "common impulse of human nature" to ascribe to him.
Before the Code the rule in Shelly’s Case obtained in this state. Norris v. Hensley, 27 Cal. 439. That rule included these propositions:
"At common law, a devise of an estate to heirs which they would have taken by descent, was void and the heirs took as heirs and not as purchasers." Page 446. "If the law will not admit of all possible heirs, etc., taking the inheritance after its inception by a freehold in the ancestor otherwise than by descent, it follows that wherever the limitation to the heirs, etc., after a freehold to the ancestor is admitted to reach the whole denomination or class of heirs described, they must take by descent and not by purchase." Page 447.
Knowing the existence of those rules, the Legislature, on adopting the Codes, enacted Civil Code, § 779, which reads:
"When a remainder is limited to the heirs, or heirs of the body, of a person to whom a life estate in the same property is given, the persons who, on the termination of the life estate, are the successors or heirs of the body of the owner for life, are entitled to take by virtue of the remainder so limited to them, and not as mere successors of the owner for life."
Later, when the question was before it, in the case entitled Barnett v. Barnett, 104 Cal. 298, at page 301, 37 P. 1049, 1050, the Supreme Court said:
"By
section 779 of the Civil Code the term ‘heirs’ is changed from the word of limitation to one of purchase, and becomes a specific designation of a class which will have the right to the property upon the termination of the life estate. Upon that event they take the property, not by descent or as successors of the plaintiff, but by virtue of the remainder which was created
for them at the execution of the deed to him."
At the same time the Legislature adopted section 1334, Civil Code, as follows:
"A testamentary disposition to ‘heirs’ *** of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the title on succession, in this Code."
And it adopted section 1335, Civil Code, as follows:
"The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person."
As the decedent did not give his property directly to the appellant the devise to him was not necessarily one of "donation and not of limitation." Civil Code, § 1335. An examination of the will discloses that the devise to the appellant, as an heir, was both a donation and a limitation and therefore Civil Code, § 1334, does not apply.
It follows that resort may be had to the statute of succession for the purpose of ascertaining who were the heirs of the widow of the deceased. Having done so, that statute ceases to be a factor. To ascertain the proportions in which each heir takes the respondent was entitled to rely on the instrument creating the remainder. Civil Code, § 779, supra. As that instrument, when fully and completely construed, contains no expression to the contrary each member of the class shares and shares equally. Burke v. Modern Woodmen of America, 2 Cal.App. 611, 84 P. 275; Cooper v. Wilder, 111 Cal. 191, 43 P. 591, 52 Am. St. Rep. 163; De Laurencel v. De Boom, 67 Cal. 362, 7 P. 758.
Estate of Watts, 179 Cal. 20, 175 P. 415, is not helpful. The will in that case did not involve a life estate and a remainder over. The devise was direct. Hence Civil Code, § § 1334 and 1335, both applied. Moreover, the will was so worded as, in effect, to adopt section 1334. It was "to my heirs and to be distributed to them according to law."
Estate of Marshall, 176 Cal. 784, 169 P. 672, is not helpful because the words of that will are "to my own family who I think are all in Mexico," thus qualifying the word "family."
Estate of Wilson, 184 Cal. 65, 193 P. 581, is not helpful because the language of the will before the court was "shall be distributed among my heirs, as provided by the laws of the state of California, the same as if I had died intestate." This language adopts section 1386— the law of succession. See page 70, 193 P. 583.
Where, as here, a gift is made of an aggregate sum to a body of persons uncertain in number at the time of the gift to be ascertained at a future time, such fact is a circumstance indicating a gift to a class. Where, as here, the devisees are described as a body, their names not being mentioned, and there is nothing to indicate a gift to individuals, that fact is a circumstance indicating a gift to a class. Estate of Fisk, 182 Cal. 238, 241, 242, 187 P. 958. And when it has been ascertained that the gift was made to a class and possession was postponed to a future period, the gift includes all persons coming within the description before the time to which possession is postponed (Civ. Code, § 1337), and they take in equal shares in the absence of language or circumstances showing a contrary intention.
The judgment is affirmed.
The petition for a rehearing is denied.