
    [No. 2.
    Third Appellate District.
    May 31, 1905.]
    In the Matter of the Estate of H. G. BUHRMEISTER, Deceased. A. L. BUHRMEISTER et al., Appellants, v. WALLACE BUHRMEISTER, Respondent.
    'Wills—Construction of—Desire and Direction for Lease.—A provision in a will expressing a “desire” that a son named “shall have the use and occupation, rents, issues, and profits of my fruit ranch, ’ ’ described, for the period of five years from the death of the testator, together with all household and kitchen furniture and personal property used in connection therewith, at a specified annual rental, to be paid in equal shares to Ms brothers and sisters, and a “direction” to all other children to execute to said son immediately after Ms death “a lease of said premises and personal property for the said term and upon the conditions herein expressed,” shows a clear intention that such son shall have the use of the property described for the period of five years.
    
      Id.—Devise of Estate—Subjection to Lease—Distribution.—Where the testator devised all of his estate in equal shares to six children, including such lease, in a previous article of the will, such devise is not without limitation, but is subject to the lease for five years subsequently provided for in favor of one of them as against th£ others, and the property was properly distributed subject to the provision for the lease.
    APPEAL for a decree of distribution under the will of a deceased testator in the Superior Court of Solano County. A. J. Buckles, Judge.
    The facts are stated in the opinion of the court.
    Reese Clark, for Appellants.
    George A. Lamont, for Respondent.
   CHIPMAN, P. J.

Settlement of final account of executors and distribution.

The testator by article II of his will devised all his property to his six children, naming them, “in equal shares, share and share alike. ’ ’

Article III of his will is as follows: “It is my desire that my son, Walter Buhrmeister, shall have the use and occupation, rents, issues and profits of my fruit ranch of about (60) sixty acres, near Manka’s Corner, for the period of five (5) years immediately after my death, should he live so long, together with all my household and kitchen furniture and all personal property belonging to me and used in connection with said fruit ranch, at the annual rental of three hundred dollars ($300) to be paid annually at the end of each year, to his brothers and sisters, sixty dollars ($60) to each, together with all taxes of every kind which may be levied upon said property during said term; and I direct all my other children to execute to my said son Walter, immediately after my death, a lease of said premises and said personal property for the said term and upon the conditions herein expressed. ’ ’

The court distributed the estate subject to these provisions of the will. Appellants contend that the whole estate was vested in the devisees by article II of the will and that article III expressed but a mere wish or suggestion; that Walter was not bound to take under this article that there was no imperative obligation imposed on him, and “if he is not bound it cannot be said that the other devisees are bound to be divested of their estate for five years at the option of Walter.” (Citing Estate of Marti, 132 Cal. 666, [61 Pac. 964, 64 Pac. 1070]; Hess v. Singler, 114 Mass. 56; Colton v. Colton, 127 U. S. 300, [8 Sup. Ct. 1164].)

In Estate of Marti, 132 Cal. 666, [61 Pac. 964, 64 Pac. 1070], the principles upon which courts have in the past interpreted, and now interpret, similar provisions of wills, are very fully discussed, and, as far as seems possible, the decisions are sought to be harmonized by a very full examination of the English and American eases. Our code provisions on the interpretation of wills (Civ. Code, sec. 1317 et seq.) are also elucidated to some extent. We feel relieved by this discussion from, the necessity of re-examining the questions. In the Marti case the entire estate was given by will to the testator’s wife. Following this devise was the following provision: “Upon the death of my wife, I desire that one half of the property bequeathed to her shall be devised by her to my relatives.'” It was held that the devisee was entitled to the entire residue of the estate of her husband free from any limitation or trust.

“A will is to be construed according to the intention of the testator.” (Civ. Code, sec. 1317.) “In case of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.” (Civ. Code, sec. 1318.) “All parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail.” (Civ. Code, sec. 1321.) “The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative.” (Civ. Code, sec. 1325.) Notwithstanding all efforts by statute and by decisions of the courts to simplify and make clear the rules by which -to interpret wills, there are certain uses of words which seem beyond absolute and unvarying definition when used in wills. Among these are precatory words. It was said in the Marti case to be “impossible to harmonize the several decisions upon the subject” as to what estate may be created by such words; and it was added “that the decision in any one case cannot be taken as a precedent for another.” Having in view 1he rules of interpretation stated in the Civil Code and without violating the reasoning in the Marti case, we think it reasonably clear that the testator, in the present case, intended to do more than leave a mere request behind him as to his son Walter.

In the paragraph of his will expressing his desire, and concerning its subject-matter, he directs certain things to be done in a way to show clearly an intention and not a mere desire that Walter should have the use of the property described for a period of five years. It is this feature of the will, set forth so specifically, that differentiates it from the Marti will. It is true that the court said in that case that no case had been cited to it in which it had been determined that a devise in absolute terms had been held to be in trust by reason of words of request or desire contained in a subsequent clause of the will. But this statement must refer to some such will as that then before the court where there were no other provisions tending to throw light upon the testator’s intention. Here the language in article III is so plain a direction that it would do violence to it to say that the testator expressed but a mere wish or desire.

The decree is affirmed.

McLaughlin, J., and Buckles, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 26, 1905, and a petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on July 25, 1905.  