The opinion
ANGELLOTTI, C. J., Dissenting.
I dissent.
I am confident that if the testatrix could meet her holographic will clad in the construction given to it by the majority opinion, she would not recognize it. In any event, she would feel that she had been extremely inadequate in attempting to express her intention as to the disposition of her estate in such a manner that it would be carried into effect by the courts.
To me it seems perfectly clear from the words of the will and the circumstances under which it was made, that it was her intention expressed therein, that each of her two sons, who were her only children and heirs at law, should take as his own, absolutely and unconditionally, one-half of the residue of her estate (which was of the value of over one hundred and twenty-five thousand dollars and consisted almost entirely of personal property), after the payment of a two thousand dollar legacy to her “old home church”; and that the expressed desire contingent on the death of Charles without issue was nothing more than the expression of a mere wish or desire on the part of the testatrix intended to be and in effect addressed
to Charles himself,
to be complied with or not as
he
might determine. The effect of the decision is practically to give to Charles only a life estate in so far as any enjoyment or control by him of the property during his lifetime is concerned, for until the very moment of his death it cannot be determined with certainty that his interest amounts to anything more. If he does die
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without issue, the estate bequeathed to him is ended. And all this in the face of the obvious desire on the part of the mother to divide her valuable estate (except for the two thousand dollar legacy) equally between her two sons, and the apparently clear and distinct bequest to them of “the balance of my estate ... to be equally divided between them. ’
’
I am constrained to admit that in material respects the will here is the same as the will involved in
Estate of Tooley,
170 Cal. 164 , [Ann. Cas. 1917B, 516, 149 Pac. 574 ], I endeavored in my opinion filed therein, in dissenting from the order denying a rehearing after decision in Department, to briefly state what I considered the basic fault in the Department opinion, and what I said there is equally applicable here, and sufficiently shows for all the purposes of a dissenting opinion my reasons for dissent herein.
Olney, J., concurred.
Rehearing denied.
Shaw, J., Lawlor, J., Lennon, J., and Sloane, 'J., concurred.
Angellotti, C. J., and Slrurtleff, J., dissented.