Chapter 6

COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 1CHAPTER 6 INTERPRETATION OF WILLS;EFFECTS OF CERTAIN PROVISIONS ;CONDITIONS AND REMAINDERS ; LEGACIES AND INTEREST § 601. Law Gover ning Interpretation; Testator's Intention Always Paramount. § 603. Several Testamentary Instruments to be Construed as One; Testator's Intention to be Given Fullest Effect Possible. § 605. Every Expression Given Some Effect; Preference for Avoiding Total Intestacy . § 607. Explanation of Ambiguities and Doubts; W ills to be Construed as a Whole; Construction of Irreconcilable Par ts. § 609. Clear Devises or Bequests Not Affected by Reasons Set Forth, Other W ords in Will, Infer ences, Arguments, and Inaccurate Recitals. § 611. Correction of Mistakes and Omissions; Use of Extrinsic Evidence to Arrive at Testamentary Intent. § 613. Words of Will to be Taken in Ordinary and Grammatical Sense; Construction of Technical W ords. § 615. Word AHeirs@or Other W ords of Inheritance Not Necessary to Devise Fee; Effect of Devise of Realty . § 617. Effect of Disposition to AHeirs,@etc.; Distinction Between W ords of Donation and W ords of Limitation. § 619.

r W ords of Inheritance Not Necessary to Devise Fee; Effect of Devise of Realty . § 617. Effect of Disposition to AHeirs,@etc.; Distinction Between W ords of Donation and W ords of Limitation. § 619. Rule of W orthier Title Abolished; Construction of Devise or Bequest to Testator's Own Heirs or Next of Kin. § 621. Effect of Devise of Land. § 623. When After -Acquired Interests are Passed by Devis e of Land; When Not. § 625. Construction of References to Death or Survivorship. § 627. Scope of Disposition to a Class; When Afterborn Child T akes. § 629. Effect of Provision Directing Conversion of Real Property . § 631. What is Included in Devise or Bequ est of All Real or Personal Property . § 633. Effect of Disposition of Residue. § 635. Death of Devisee of Limited Interest; Effect Upon Persons in Rema inder . § 637.@Conditional Disposition @Defined. § 639. Condition Precedent: Definition; Construction; Op eration.COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 2§ 641. Condition Subsequent: Definition; Operation. § 643. Bequest of Interest or Income Accrues From Time of Death. § 645. Legacies: Distinctions, Definitions and Designations. § 647.

TION OF WILLS 2§ 641. Condition Subsequent: Definition; Operation. § 643. Bequest of Interest or Income Accrues From Time of Death. § 645. Legacies: Distinctions, Definitions and Designations. § 647. Unpaid Legacies to Bear Interest; Commencement of Annuities; Unpaid Accumulations to Bear Interest. § 649. Distribution of Net Income From Property Sold During Administration. § 601. Law Governing Interpretation; Testa tor's Inten tion Always Paramount. The interpre tation of wills, wherever made, is governed, whe n relating to property within the territory of Guam, by the laws of the territory of Guam, and the rules prescribed in this Chapter are to b e observed, unless an intention to the contrary clearly appears; provided, that the provisions of this Chapter are i n all cases to be interpreted in light of a testator's express intention. SOURCE : All prior to semicolon: Probate Code of Guam (1970); § 100. All after semico lon: Probate Code of Guam (1970), § 162. § 603. Several Testamentary Instruments to be Con strued as One; Testator's Intention to be Given Fullest Effect Possible. Several testa mentary instruments executed by the same testator are to be taken and construed

stamentary Instruments to be Con strued as One; Testator's Intention to be Given Fullest Effect Possible. Several testa mentary instruments executed by the same testator are to be taken and construed together as one instrument. A will is to be construed according to the intention of the testa tor. Wher e the testator's intention cannot have effect to its full extent, it must have effect as far as possible. SOURCE : Probate Code of Guam (1970), § 101. § 605. Every Expression Given Some Effect; Preference for Avoiding Total Intestacy. The wor ds of a will are to receive an interpretation which will give to ever y expr ession some effect, rather than one which will render any of the expr essions inoperative; and of two modes of interpret ing a will, that is to be preferred which will prevent a total in testacy . SOURCE : Probate Code of Guam (1970), § 102. § 607. Explanation of Ambiguities and Doubts; Wills to be Construed as a Whole; Construction of Irreconcil able Parts.COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 3Wher e the mea ning of any part of a will is ambigu ous or doubtful, it may be explai ned by any reference thereto, or recital thereof, in another part

STATES AND PROBATE CH.6INTERPRETATION OF WILLS 3Wher e the mea ning of any part of a will is ambigu ous or doubtful, it may be explai ned by any reference thereto, or recital thereof, in another part of the will. All the parts of a will are to be construed in rela tion to each other, and so as, if possible, to form one consistent whole; but wher e several parts are absolutely irreconcilab le, the latter must prevail. SOURCE : Probate Code of Guam (1970), § 103. § 609. Clear Devises or Bequests Not Affected by Reasons Set Forth, Other Words in Will, Inferences, Argu ments, and Inaccurate Recitals. A clear and distinct devise or bequest can no t beaffected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will. SOURCE : Probate Code of Guam (1970), § 104. § 611. Correction of Mistakes and Omissions; Use of Extrinsic Evidence to Arrive at Testamen tary Intent. When there is an imperfect de scription in a will, or no person or property exactly answers the description in a will, mis takes and omis - sions must

nsic Evidence to Arrive at Testamen tary Intent. When there is an imperfect de scription in a will, or no person or property exactly answers the description in a will, mis takes and omis - sions must be corrected, if such error appears from the context of the will or from extrinsic evidence. When an uncertainty arises upon the face of a will, as to the applica tion of any of its provisions, the testator's intention is to be ascertained from the words of the will or from extrinsic evidence, taking into view the circumstances under which the will was made. AExtrinsic evidence, @as used in this Section, may include the oral declara tions of the testator as to his testam entary intent, but such oral declarations may be considered only when no other evidence is available apart from the words of the will. SOURCE : Guam Law Revision Commission. COMMENT : Section 105 of the Probate Code of Guam (1970), like § 611, set out certa in rules of construction for the interpreta tion of wills. The Commission is of the opinion that § 105 of the Probate Code of Guam (1970) was too restrictive as to what evidence the Court might consider, in that it prohibit ed the consideration of the test ator's

ommission is of the opinion that § 105 of the Probate Code of Guam (1970) was too restrictive as to what evidence the Court might consider, in that it prohibit ed the consideration of the test ator's oral statements concerning his inten tions. Similar concerns are voiced by Professor Lowell T urrentine in his AIntroduction to the California Pro bate Code,@which appears in 52 W est's Annotated Califor nia Codes, Probate Code, §§ 1-399, at p. 1 e t seq. The Commission has thus draft ed § 611, which allows the Court to consider a testator's declarations as to his intent, but only if that is the only COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 4evidence available going to that issue. That is, the Court must exhaust all other avenues and find th em completely lacking before it may consider extrinsic evidence consisting of the testator's own declara tions as to his intent. § 613. Words of Will to be Taken in Ordinary and Gram matical Sense; Construction of Technical Words. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other use can be ascer tained.

cal Words. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other use can be ascer tained. T echnical words arenot necessary to give effect to any species of disposi tion by a will; but technical words in a will are to be taken in their technical sense, unless the con text clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unac quainted with such technical sense. SOURCE : Probate Code of Guam (1970), § 106. § 615. Word 'Heirs' or Other Words of Inher itance Not Necessary to Devise Fee; Effect of Devise of Realty. The ter m Aheirs,@or other words of inher itance, are not requisite to devise a fee, a nd a devise of real property passes all of the estate of the testator, unless otherwise limited. SOURCE : Probate Code of Guam (1970), § 107. § 617. Effect of Disposition to 'Heirs,' etc.; Distinction Between Words of Donation and Words of Limitation. A testamentary disposition to Aheirs,@Arelations,@Arepresenta tives,@ Alegal representatives, @Apersonal representatives, @Afamily ,@Anearest

nction Between Words of Donation and Words of Limitation. A testamentary disposition to Aheirs,@Arelations,@Arepresenta tives,@ Alegal representatives, @Apersonal representatives, @Afamily ,@Anearest of kin@or Anext of kin @of any person, without other words of qualification, and when the terms are used as words o f dona tion and not of limitation, vests the property in those who would be entitled to succeed to the property of the testator and in the same shares, as if the testator had died intestate. Such terms are used as words of donation, and not of limitation, when the proper ty is given to the person so designated directly , and not as a qualifica tion of an estate given to the ancestor of such person. SOURCE : Probate Code of Guam (1970), § 108. § 619. Rule of Worthier Title Abolished; Construction of Devise or Bequest to Testator's Own Heirs or Next of Kin. The la w of t he territory of Guam does not include either COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 5(1) the common law rule of worthier title, that a testator cannot devise an interest to his own heirs; or (2) a presumption or rule of interpretation that a testator does not intend, by a devise or

5(1) the common law rule of worthier title, that a testator cannot devise an interest to his own heirs; or (2) a presumption or rule of interpretation that a testator does not intend, by a devise or bequest to his own heirs or next of kin, to transfer an interest to them. The meaning of a devise or bequest of a legal or equitable interest to a testator's own heirs or next of kin, however designated, sha ll be deter mined by the general rules applicable to the interpretation of wills, as set forth in this Chapter. This Section shall be applied in all cases in which final judgment has not been entered on the effective date of this Section. SOURCE : Californi a Probate Code, § 109. COMMENT : The common law rule of worthier title dates back to the very old English common law . It arose at a time when wills were very much distrusted by the English courts of law , for a number of reasons which may be of historical significance but which no longer have validity in a nonfeudal system of land tenure. Although the rule has largely been abolished, by statute or court interpre - tation in virtually every Ameri can jurisdic tion, it is conceivable that without a statute such a s § 619, the

nd tenure. Although the rule has largely been abolished, by statute or court interpre - tation in virtually every Ameri can jurisdic tion, it is conceivable that without a statute such a s § 619, the argument might be pressed upon the courts of Guam that it should remain in effect in Guam. Although § 617, supra, makes it rela tively clear that the rule does not apply in Guam, the Commission believes that Guam should follow the lead of othe r jurisdic tions which have eliminated the rule by statute and write the rule out of Guam's law once and for all. § 621. Effect of Devise of Land. A devise of land conveys all the estate of the testator therein which he could lawfully devise, unless it cl early appear by the will that the testator intended to convey a less estate. SOURCE : Probate Code of Guam (1970), § 120. § 623. When After -Acquired Interests are Passed by Devise of Land; When Not. Any estate, right, or interest in lands acquired by the testator after the ma king of his will, passes ther eby and in like ma nner as if title thereto ha d been vested in the testator at the time he made the will, unless the contrary manifestly appears by the will to have been the intention of the

es ther eby and in like ma nner as if title thereto ha d been vested in the testator at the time he made the will, unless the contrary manifestly appears by the will to have been the intention of the testator . SOURC E: Probate Code of Guam (1970), § 121. § 625. Construction of References to Death or Survi vorship.COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 6Words in a will referring to death or survivorship, simply , relate to the time of the testator's death, unless possession is actually postponed, in which e vent they must be referred to the time of possession. SOURCE : Probate Code of Guam (1970), § 122. § 627. Scope of Disposition to a Class; When Afterborn Child Takes. A testamentary dispo sition to a class includes every person answer ing to the descriptio n at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which posses sion is postponed, unless in either case the contrary manifestly appears by the will to have been the intention of the testator . Achild conceived before but born after a testator's death, or any other period when a disposi tion

either case the contrary manifestly appears by the will to have been the intention of the testator . Achild conceived before but born after a testator's death, or any other period when a disposi tion to a class vests in right or in possession, takes, if answering to the description of the class. SOURCE : Probate Code of Guam (1970), § 123; Guam Law Revision Commission. COMMENT : Section 123 of the Probate Code of Guam (1970) did not contain the words, A...unless in either case the contrary mani festly appears by the will to have been the intention of the te stator .@They have been was added to ensure that the court will interpret a will according to the testator's intention, to the greatest extent practicable. § 629. Effect of Provision Directing Conver sion of Real Property. When a will directs the conversio n of real property into money , such property and all its proceeds shall be deemed personal property from the time of the testator's death. SOURCE : Probate Code of Guam (1970), § 124. § 631. What is Included in Devise or Bequest of All Real or Personal Property. A devise or bequest of all the testator's real or personal property , in express terms, or in any other terms

0), § 124. § 631. What is Included in Devise or Bequest of All Real or Personal Property. A devise or bequest of all the testator's real or personal property , in express terms, or in any other terms denoting the testator's intent to dispose of all his real or personal property , passes all the real or personal property which the testator was entitled to dispose of by will at the time of death, including property em braced in a power to devise. SOURCE : Probate Code of Guam (1970), § 125.COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 7COMMENT : Section 125 of the Probate Code of Guam (1970) was the same as § 125 of the California Probate Code prior to its amend ment in 1970. The California statute now reads as follows: @Except as provided by Sections 1386.1 and 1386.2 of the Civil Code relating to powers of appoint ment, a devise or be quest of all the testator's real or personal propert y,in express terms, or in any other terms denoting his intent to dispose of all his real or personal property , passes all the real or personal property which he was entitled to dis pose of by will at the time of his death.

n any other terms denoting his intent to dispose of all his real or personal property , passes all the real or personal property which he was entitled to dis pose of by will at the time of his death. @ As Guam has no statutes simi lar to §§ 1386.1 and 1386.2 of the California Civil Code, there is no reason for altering prior § 125. Should Guam adopt statutes similar to the California statutes dealing with powers of appointment, however, § 631 should be amended to comport with those statutes. § 633. Effect of Disposition of Residue. A devise of the residue of a testator's real proper ty, or a bequest of the residue of a testator's personal property , passes all the real or person al property , as the case may be, which the testator was entitled to devise or bequeath at the time of death, not otherwise effectual ly devised or bequeathed by the testator's will. SOURCE : Probate Code of Guam (1970), § 126. COMMENT : See Comment to § 631, supra, which Comment is also applicable to § 633. § 635. Death of Devisee of Limited Interest; Effect Upon Persons in Remainder. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interest of

633. § 635. Death of Devisee of Limited Interest; Effect Upon Persons in Remainder. The death of a devisee or legatee of a limited interest before the testator's death does not defeat the interest of persons in remainder who survive the testator . SOURCE : Probate Code of Guam (1970), § 140. § 637. Conditional Disposition Defined. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. SOURCE : Probate Code of Guam (1970), § 141 . § 639. Condition Precedent: Definition; Con struction; Operation. A condition precedent in a will is one which is required to b e fulfilled before a particular disposition takes effect. It is to be deemed performed when the testator's inten tion has been substantially , though not COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 8literally , complied with. Nothing vests until such condition is fulfilled, except where fulfill ment is impossible, in which case the disposition vests, unless the condition was the sole motive for the disposition and the impossib ility was unknown to the testator or arose from an un avoidable event subsequent to the execution

the disposition vests, unless the condition was the sole motive for the disposition and the impossib ility was unknown to the testator or arose from an un avoidable event subsequent to the execution of the will. SOURCE : Probate Code of Guam (1970), § 142. § 641. Condition Subsequent: Definition; Operation. A condition subsequent is a condi tion under whi ch an estate or interest is so given as to vest immediately , subject only to be divested by some subsequent act or event. A testamentary disposition, when vested, can not be divested unless upon the occurrence of the precis e contingency prescribed by the testator for that purpose. SOURCE : Probate Code of Guam (1970), § 143. § 643. Bequest of Interest or Income Accrues From Time of Death. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death. SOURCE : Probate Code of Guam (1970), § 160. § 645. Legacies: Distinctions, Definitions and Designa tions. Legacies are distinguished, defined and designated, according to their nature, as follows: (a) Specific : Alegacy of a particular thing, specified a nd distinguished from all others of the same kind belong ing to the

inguished, defined and designated, according to their nature, as follows: (a) Specific : Alegacy of a particular thing, specified a nd distinguished from all others of the same kind belong ing to the testator, is specific; if such legacy fails, resort can not be had to the other property of the testator . (b) Demonstrative: A legacy is demonstra tive when the particular fund or persona l prop erty is pointed out from which it is to be taken or paid. (c) Annuity: An annuity is a bequest of certain speci fied sums periodically; if the fund or property out of which a demonstrative legacy or an annuity is payable fails, in whole or in part, resort may be had to the general assets of the testator's estate, as in case of a general legacy . (d) Residuary: A residuary legacy embraces only that which remains after all the bequests of the will are dis charged. COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 9(e) General: All other legacies are g eneral legacies. SOURCE : Probate Code of Guam (1970), § 161. § 647. Unpaid Legacies to Bear Interest; Commence ment of Annuities; Unpaid Accumula tions to Bear Interest.

al: All other legacies are g eneral legacies. SOURCE : Probate Code of Guam (1970), § 161. § 647. Unpaid Legacies to Bear Interest; Commence ment of Annuities; Unpaid Accumula tions to Bear Interest. General pecuniary legacies, including general pecuniary legacies in trust, if not pai d prior to the first anniversary of the testator's death, bear annual interest thereafter at the rate prescribed by law for interest on civil judgments. Annuities commence at the testator's death and are due at the end of the annual, monthly or other speci fied period. Whenever an annuitant, legatee of a legacy for maintenance or beneficia ry of a trust may be entitled to periodic pay ments or trust income commencing at the testator's death, he shall be entitled to annual interest, at the rate pre - scribed by law for interest on civil judgments, on the amount of any unpaid accumulations of such payments or income held by the personal representative on each anniversary of the testa tor's death, computed from the date of such anniversary . SOURCE : California Pro bate Code, § 162. COMMENT : The Probate Code of Guam, as originally enacted, contained no provision for interest on legacies, etc., as

uted from the date of such anniversary . SOURCE : California Pro bate Code, § 162. COMMENT : The Probate Code of Guam, as originally enacted, contained no provision for interest on legacies, etc., as provided in § 647. The Commission is of the opinion that such a provi sion is necessary , in order to be certain that legat ees receive everything due to them and to help protect legatees against overly long delays in administration of es tates. Moreover, the provisions concerning time of payment statutorize common law rules which do not have applica tion in Guam under the Code s of Guam. Also see Comment to § 649, infra. § 649. Distribution of Net Income From Prop erty Sold During Administration. Unless other wise specifically provided by the will of the testator, (a) all net income received during the period of administra tion from real or personal property not specifical ly or demon strably devised or bequeathed, including net income from property sold during such period, shall be distributed pro rata as income to any trust of all or any part of the residuary estate, and to an y tenant or tenants for life or for a term of years of all or any part of the residuary estate, and to any

ibuted pro rata as income to any trust of all or any part of the residuary estate, and to an y tenant or tenants for life or for a term of years of all or any part of the residuary estate, and to any person entitled absolutely or free of trust to all or any part of the residuary estate; but (b) no such income shall be distributed as income of a ge neral pecuniary legacy in trust, except that the interest on a pecuniary COL12010615GCA ESTATES AND PROBATE CH.6INTERPRETATION OF WILLS 10legacy in trust provided for in Section 647 of this Title shall be distributed as income to said trust. SOURCE : California Probate Code, § 162.5. COMMENT : The Probate Code of Guam (1 970) con tained no provision similar to § 649. Addition of such a Section is, however, necessary to clarify the distribu tion of income earned by an estate during the course of its administration. The operation of the Califor nia version of § 649 is descri bed as follows: Until the amendment of Probate Code § 162 [which made it read similarly to § 647, supra] and the addition of Probate Code § 162.5 [which reads similarly to § 649] in 1959, the following questions were unset tled in California: (a) Is the in come

ch made it read similarly to § 647, supra] and the addition of Probate Code § 162.5 [which reads similarly to § 649] in 1959, the following questions were unset tled in California: (a) Is the in come beneficiary of a residuary trust entitled to income earned during probate upon assets which are sold prior to distribution of the probate estate? (Probate Code § 162.5 now so provides.) (b) Is the beneficiary of a trust established by a general pecuni ary legacy , rather than a residuary bequest, entitled to receive income from the date of the testator’s death or only from the date when the fund is distributed by the exec utor to the trustee? (Probate Code §§ 162 and 162.5 provide for income from the dat e of distribution.) (c) Where a portion of the residue is bequeathed in trust and the balance outright, how is the probate income to be divided? (Probate Code § 162.5 provides for pro rata distribu tion.) For example, if half the estate is bequeathed in t rust and half outright, the income beneficiary of the residuary trust should receive half the income and the other half should be added to the share of the outright residuary legatee.

bequeathed in t rust and half outright, the income beneficiary of the residuary trust should receive half the income and the other half should be added to the share of the outright residuary legatee. Califor nia Continuing Education of the Bar , California Estate Administr ation, § 37.23. Also see Comment to § 647, supra. ----------