Filed 12/19/18
                             CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                         DIVISION ONE


 Estate of CHERYL D. STOCKIRD,
 Deceased.

 BRUCE RAMSDEN,                                      A152538

            Contestant and Respondent,               (Contra Costa County
 v.                                                  Super. Ct. No. MSP15-00183)
 JOHN L. AGUIRRE, SR., Individually
 and as Administrator, etc.,
            Claimant and Appellant.


        Cheryl D. Stockird died, leaving a handwritten will that transferred “all my
property and everything I may be entitled to inherit” to her life partner, John L. Aguirre,
Sr., and an aunt related by marriage, Patricia Ambrose. The will did not include
alternative provisions for disposition of the shares if either gift lapsed. Ambrose died
before Stockird.
        After Stockird died, her will was admitted to probate. Aguirre petitioned the
probate court for an order declaring he is entitled to Stockird’s entire estate as the sole
surviving residuary beneficiary under Probate Code1 section 21111, subdivision (b)
(§ 21111(b)). Stockird’s half brother, Bruce Ramsden, filed a petition arguing the lapsed
gift to Ambrose must instead pass to Stockird’s estate under section 21111,
subdivision (a)(3) (§ 21111(a)(3)). Ramsden then asserted that as Stockird’s only




        1
            All statutory references are to the Probate Code unless otherwise specified.
surviving heir, he is entitled to distribution of Ambrose’s share under the laws of
intestacy.
       The probate court agreed with Ramsden and entered an order transferring the
residuary gift that would have passed to Ambrose to Stockird’s estate.
       The sole issue on appeal is whether the failed gift should be distributed to Aguirre
under section 21111(b) or Stockird’s estate under section 21111(a)(3). Following de
novo review, we reverse the judgment of the probate court.
                                    I. BACKGROUND
       On February 3, 2014, Stockird executed a holographic will, which provided in its
entirety as follows:
       “Will
       “I Cheryl Denise Stockird declare this as my last will. I am single and I have no
children. I hereby leave all my property and everything I may be entitled to inherit to:
       “65% John L. Aguirre Sr.
       “35% Patricia Ambrose
       “I sign this on February 3, 2014.
       “[Signature: Cheryl D. Stockird.]”
       Aguirre was Stockird’s long-time life partner. Ambrose, who was not related by
blood to Stockird, had been married to Stockird’s predeceased maternal uncle. Ambrose
died in June 2014.
       Stockird died in January 2015. Stockird’s will was admitted to probate, and
Aguirre was appointed administrator with will annexed.
       In February 2017, Aguirre filed his account and report of administration and
petition for settlement. Aguirre requested the court determine pursuant to
section 21111(b) that he is entitled to the entire residue of the estate as the only residuary
beneficiary. Around the same time, Ambrose’s children and grandchildren petitioned the
court for reformation of the will to reflect Stockird’s defined specific intent, arguing she
wanted her half brother, Ramsden, to receive nothing from her estate and intended for the



                                              2
failed residuary gift to pass to Ambrose’s heirs.2 On March 30, 2017, Ramsden filed a
petition to determine entitlement to distribution, claiming he, as the sole intestate heir of
Stockird, is entitled to receive the failed 35 percent gift to Ambrose under
section 21111(a)(3).
       After briefing by the parties, the probate court issued an order on September 14,
2017, concluding Ambrose’s share passed to Stockird’s estate. The court first determined
that because Ambrose was not related by blood to Stockird, she was not “kindred” within
the meaning of California’s “antilapse” statute, section 21110, subdivision (c)
(section 21110(c)),3 and accordingly, the 35 percent gift did not pass to Ambrose’s heirs
under section 21110. The court next found the 35 percent bequest to Ambrose qualified
as a “residuary gift” within the meaning of section 21111, subdivision (c)
(section 21111(c)). Finally, applying the definition of “ ‘transferee’ ” in section 21110(c)
to section 21111, the court concluded because Ambrose was not kindred of Stockird, she
was not a “transferee” within the meaning of section 21111(b) and the 35 percent
residuary gift could not go to Aguirre under that section, but must pass under section
21111(a)(3) to Stockird’s estate. Aguirre timely appealed.
                                     II. DISCUSSION
       The sole issue on appeal is whether the probate court correctly applied the
definition of “transferee” in section 21110(c) to section 21111(b). Because the resolution
of that issue is a question of statutory interpretation, we exercise independent review.
(Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 (Bruns).)



       2
        Ambrose’s heirs’ claims are not at issue in this appeal. The probate court
ordered that they “are not entitled as a matter of law to receive the 35% residuary gift but
may receive it in part or in its entirety if the Court, at a trial to be calendared, later
reforms the holographic will to reflect such an alternative disposition of the residuary
gift.”
       3
           “Section 21110 is known as an ‘antilapse’ statute because the attempted devises
protected by it would otherwise lapse and the property would pass instead by intestacy
. . . .” (Estate of Mooney (2008) 169 Cal.App.4th 654, 658.)


                                              3
       As a preliminary matter, we agree with both parties and the probate court on two
issues relevant to our analysis. First, Ambrose’s heirs are not entitled to her share under
California’s antilapse statute. Section 21110, subdivision (a) provides in relevant part:
“Subject to subdivision (b),[4] if a transferee . . . fails or is treated as failing to survive the
transferor . . . the issue of the deceased transferee take in the transferee’s place in the
manner provided in Section 240.” Section 21110(c) in turn provides: “As used in this
section, ‘transferee’ means a person who is kindred of the transferor or kindred of a
surviving, deceased, or former spouse of the transferor.” “ ‘Kindred’ ” refers to persons
related by blood, and other persons listed in section 21115. (Cal. Law Revision Com.
com., 54A pt. 2 West’s Ann. Probate Code (2011 ed.) foll. § 21110, p. 76.) It is
undisputed Ambrose was not kindred of Stockird. Thus, section 21110 does not apply to
Ambrose, and her issue are not entitled to her share under the antilapse statute.
       Second, the bequest of Stockird’s estate to Aguirre and Ambrose was a residuary
gift. Section 21111(c), provides: “A transfer of ‘all my estate’ or words of similar
import is a residuary gift for purposes of this section.” Stockird’s will states: “I hereby
leave all my property and everything I may be entitled to inherit . . . .” Her words reflect
an intent to gift “ ‘all of [her] estate.’ ”
       Turning to the merits of this appeal, we are called upon to interpret section 21111,
the statute governing failed transfers. “ ‘Our fundamental task in interpreting a statute is
to determine the Legislature’s intent so as to effectuate the law’s purpose. We first
examine the statutory language, giving it a plain and commonsense meaning. We do not
examine that language in isolation, but in the context of the statutory framework as a
whole in order to determine its scope and purpose and to harmonize the various parts of
the enactment. If the language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd consequences the Legislature did not



       4
         Section 21110, subdivision (b) provides: “The issue of a deceased transferee do
not take in the transferee’s place if the instrument expresses a contrary intention or a
substitute disposition.”


                                                 4
intend. If the statutory language permits more than one reasonable interpretation, courts
may consider other aids, such as the statute’s purpose, legislative history, and public
policy.’ ” (Bruns, supra, 51 Cal.4th at p. 724.)
       Section 21111 provides, in relevant part:
       “(a) Except as provided in subdivision (b) and subject to Section 21110,[5] if a
transfer fails for any reason, the property is transferred as follows:
       “(1) If the transferring instrument provides for an alternative disposition in the
event the transfer fails, the property is transferred according to the terms of the
instrument.
       “(2) If the transferring instrument does not provide for an alternative disposition
but does provide for the transfer of a residue, the property becomes a part of the residue
transferred under the instrument.
       “(3) If the transferring instrument does not provide for an alternative disposition
and does not provide for the transfer of a residue, or if the transfer is itself a residuary
gift, the property is transferred to the decedent’s estate.
       “(b) Subject to Section 21110, if a residuary gift or a future interest is transferred
to two or more persons and the share of a transferee fails for any reason, and no
alternative disposition is provided, the share passes to the other transferees in proportion
to their other interest in the residuary gift or the future interest.” (Italics added.)
       This appeal focuses on the meaning of “Subject to Section 21110” and
“transferee” in section 21111(b). The probate court concluded the phrase “Subject to
section 21110” means the definition of “transferee” as kindred in section 21110(c)
applies to section 21111(b). The court reasoned: “As readily discernable, both
subdivision (a) and subdivision (b) of Probate Code section 21111 refer directly to
Probate Code section 21110. The definition of transferee specified in one statute as a


       5
            As noted above, section 21110, subdivisions (a) and (b) provide “if a transferee
. . . fails or is treated as failing to survive the transferor . . . the issue of the deceased
transferee take in the transferee’s place in the manner provided in Section 240,” unless
“the instrument expresses a contrary intention or a substitute disposition.”


                                                5
consequence applies as well to the other.” (Fn. omitted.) Because Ambrose was not
kindred of Stockird, the court explained, and hence not a transferee as defined in
section 21110(c), her gift was not covered by section 21111(b).
       For several reasons, we conclude the probate court misconstrued the statute.
Looking first (as we must) to the plain language, section 21110(c) defines “ ‘transferee’ ”
as kindred “[a]s used in this section.” Thus, the express words of the statute provide the
definition of “transferee” as kindred applies only to section 21110. Had the Legislature
intended to apply the same definition of “transferee” to section 21111(b), it could have
said so. Further, we must consider the language in the context of the statutory framework
as a whole. Generally, a “transferee” under the Probate Code is a “beneficiary, donee, or
other recipient of an interest transferred by an instrument.” (§ 81.5.) That definition
applies unless otherwise specified or required. (§ 20 [“Unless the provision or context
otherwise requires, the definitions in this part govern the construction of this code.”].)
We conclude under the plain language of the statute as construed in light of the entire
statutory framework, the definition of “transferee” as kindred in section 21110(c) applies
to section 21110, but the more general definition of “transferee” applies in
section 21111(b).
       Our interpretation is supported by the legislative history. The language “Subject to
Section 21110” in section 21111(b) was added by the most recent statutory amendment in
in 2002. (Stats. 2002, ch. 138, § 20, p. 723.) As the Law Revision Commission
comments to the 2002 amendment state: “Section 21111 is amended to clarify the
treatment of a failed residuary gift. [¶] . . . [¶] With respect to a residuary devise,
subdivision (b) abolishes the ‘no residue of a residue’ rule, illustrated by Estate of
Murphy [(1910)] 157 Cal. 63. It preserves the change made by former Section 6148 in
the California case law rule that if the share of one of several residuary devisees fails, the
share passed by intestacy. See, e.g., Estate of Russell [(1968)] 69 Cal.2d 200, 215–16;
[citations].” (Cal. Law Revision Com. com., 54A pt. 2 West’s Ann. Prob. Code, supra,
foll. § 21111, p. 83; Catch v. Phillips (1999) 73 Cal.App.4th 648, 654 [“ ‘Explanatory



                                               6
comments by a law revision commission are persuasive evidence of the intent of the
Legislature in subsequently enacting its recommendations into law.’ ”].)
       As the Law Revision Commission comments allude, the “ ‘no residue of a residue’
rule” was the common law rule previously applicable in California, which provided:
“That portion of any residuary estate that is the subject of a lapsed gift to one of the
residuary beneficiaries remains undisposed of by the will and passes to the heirs-at-law.”
(Estate of Russell, supra, 69 Cal.2d 200, 215.) In 1983, the Legislature enacted former
section 6148 to address the treatment of failed residuary gifts. (Stats. 1983, ch. 842, § 55,
pp. 3049, 3053 [“Except as provided in Section 6147[6] or in the will: [¶] (a) If a devise
(other than a residuary devise or a devise of a future interest) fails for any reason, the
property devised becomes a part of the residue. [¶] (b) If the residue . . . is devised to two
or more persons and the share of a devisee fails for any reason, the share passes to the
other devisees in proportion to their other interest in the residue . . . .”].) Former
section 6148 was based on Uniform Probate Code section 2-606 and altered the existing
rule that a failed residuary gift passed by intestacy. (Legis. Counsel’s Dig., Assem. Bill
No. 25 (1983–1984 Reg. Sess.) 2 Stats. 1983, Summary Dig., pp. 285–286; Sen. Com. on
Judiciary, Analysis of Assem. Bill Nos. 25 & 68 (1983–1984 Reg. Sess.), p. 9 [noting
“[w]ith respect to a residuary devise, subdivision (b) changes the former California case
law rule that if the share of one of several residuary devisees fails, the share passed by
intestacy”].) As is clear from the text of former section 6148, it applied “[e]xcept as
provided” in the antilapse statute. In other words, if the antilapse statute applied, the
lapsed residuary gift would pass to the residuary devisee’s heirs, but if the antilapse
statute did not apply, the gift would pass to the other residuary devisees. The Law
Revision Commission comments to the 2002 amendment to section 21111 explain the
statute “preserves the change” introduced by former section 6148. (Cal. Law Revision
Com. com., 54A pt. 2 West’s Ann. Prob. Code, supra, foll. § 21111, p. 83.)


       6
        Former section 6147 was the antilapse statute, currently section 21110. (Stats.
1983, ch. 842, § 55, pp. 3049, 3053; Estate of Begley (1988) 201 Cal.App.3d 791, 795.)


                                               7
       The Law Revision Commission further clarified the intent of section 21111 in its
recommendations for the proposed legislation: “Section 21111 provides rules for
treatment of a failed transfer. A failed specific gift passes by intestacy, absent an
alternate or residuary disposition. A failed residuary gift passes to the remaining
residuary beneficiaries proportionately.” (Recommendation on Rules of Construction for
Trusts and Other Instruments (Nov. 2001) 31 Cal. Law Revision Com. Rep. (2001)
p. 180.) The Commission also explained, “Under the existing statute, it is unclear
whether a gift of ‘my estate’ is to be treated as a general gift or as a residuary gift. The
proposed law makes clear that such a gift is to be treated as a residuary gift. Thus, if a
gift of ‘my estate’ fails, it would go to other residuary beneficiaries or, if none, pass by
intestacy.” (Id. at pp. 180–181.) In describing the disposition of lapsed residuary gifts to
other residuary beneficiaries, the Commission made no reference to the rule only
applying to kindred as defined in the antilapse statute.
       The Law Revision Commission’s comments also note that section 21111 “is
drawn from Section 2-606 of the Uniform Probate Code (1987).” (Cal. Law Revision
Com. com., 54A pt. 2 West’s Ann. Prob. Code, supra, foll. § 21111, p. 83.) That section
provided as follows: “(b) Except as provided in Section 2-605[7] if the residue is devised
to two or more persons and the share of one of the residuary devisees fails for any reason,
his share passes to the other residuary devisee, or to other residuary devisees in
proportion to their interests in the residue.” (8 pt. I West’s U. Laws Ann. (2013) U. Prob.
Code, § 2-606, pp. 591–592.) The comment to former Uniform Probate Code section 2-
606 states: “If a devise fails by reason of lapse and the conditions of Section 2-605 are
met, the latter section governs rather than this section.” (8 pt. I West’s U. Laws Ann.,
supra, U. Prob. Code, com. foll. § 2-606 at p. 592.) As that comment makes clear, if a
residuary gift lapses and the antilapse statute applies, the antilapse statute governs and the



       7
         Uniform Probate Code section 2-605, like section 21110, was the antilapse
statute, which provided for disposition to a devisee’s heirs if a gift lapsed. (8 pt. I West’s
U. Laws Ann., supra, U. Prob. Code, § 2-606, pp. 591–592.)


                                               8
gift goes to the devisee’s heirs rather than the other residuary devisees. If, however, the
antilapse statute does not apply, the lapsed residuary gift is distributed to the other
residuary beneficiaries. We conclude the same analysis applies to the interplay between
sections 21110 and 21111, which were adopted from former Uniform Probate Code
sections 2-605 and 2-606. (See Cal. Law Revision Com. com., 54A pt. 2 West’s Ann.
Prob. Code, supra, foll. § 21111, p. 83 [§ 21111]; Estate of Mooney, supra,
169 Cal.App.4th at p. 663 [§ 21110].)
       This analysis is further supported by the Restatement Third of Property. (See, e.g.,
Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1607 [noting California courts
often find the Restatement persuasive].) “For the purpose of determining what happens
to the share of a residuary devisee who fails to survive the testator, a residuary clause that
devises the residue to two or more persons is treated as if it is a class gift, even if the
devise is not in the form of a class gift. The contrary rule, sometimes called the no-
residue-of-a-residue rule, is not followed in modern statutory law, including the Uniform
Probate Code, nor in this Restatement. Thus, if an antilapse statute does not apply, the
share of a residuary devisee that fails for any reason passes to the other residuary devisee
. . . . A residuary devise lapses and passes to intestacy only if an antilapse statute does not
apply and no residuary devisee survives the testator.” (Rest.3d Property, Wills and Other
Donative Transfers, § 5.5, com. o, pp. 389–390.)
       Finally, the interpretation we adopt herein is consistent both with specific
legislative intent and the general principle of probate law that intestacy is to be avoided
when possible. (See Cal. Law Revision Com. com., 54A pt. 2 West’s Ann. Prob. Code,
supra, foll. § 21111, p. 84 [“In the case of a failed gift of a portion of an estate or residue,
this section may be applied in appropriate circumstances so as to prevent an intestacy or a
distorted disposition.”]; § 21120 [“Preference is to be given to an interpretation of an
instrument that will prevent intestacy or failure of a transfer . . . .”]; Estate of Beldon
(1938) 11 Cal.2d 108, 111–112 [it is presumed that the act of making a will demonstrates
an intent to avoid an intestacy]; Estate of Meininger (1965) 237 Cal.App.2d 102, 105



                                               9
[residuary clauses are to receive a liberal interpretation so as to avoid intestacy of any
part of testator’s estate].)
       In sum, given the plain language of the statute and the clear intent of the
Legislature to abolish the “ ‘no residue of a residue’ ” rule and avoid intestacy, we
conclude the 35 percent lapsed gift does not go to Stockird’s estate under
section 21111(a)(3), but, subject to determination of the reformation petition filed by
Ambrose’s descendants, must pass to Aguirre under section 21111(b).
                                    III. DISPOSITION
       The probate court’s September 14, 2017 order on the petition to entitlement to
distribution is reversed, and the matter is remanded to the probate court for further
proceedings in accordance with this opinion. Upon remand, the probate court is directed
to vacate the September 14, 2017 order and enter a new order (1) denying Ramsden’s
petition in its entirety; and (2) subject to determination of the Ambrose heirs’ reformation
petition, directing that Aguirre is entitled to receive the failed 35 percent residuary gift
under section 21111(b). Aguirre is awarded his costs on appeal.




                                              10
                                                ____________________________
                                                Margulies, Acting P. J.


We concur:


_____________________________
Banke, J.



_________________________
Kelly, J.*




A152538
Estate of Stockird




       *
        Judge of the Superior Court of the City and County of San Francisco, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.



                                           11
Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. John H. Sugiyama

Counsel:

Nelson & Weinkauf, Robert L. Nelson and Susan B. Cohen for Claimant and Appellant.

Gromis & Aguirre, L. Kim Aguirre for Contestant and Respondent.




                                        12
