Lapsed gift distributed as if it were property of deceased legatee

The California anti-lapse statute provides that if a covered “transferee” dies before the testator, the transferee’s issue take the subject of the gift “in the manner provided in Section 240” which defines “representation” as modern per stirpes with the division into shares beginning in the eldest generation with living members.

The testatrix’s will left most of her estate to her father if he survived and in equal shares to her two sisters if he did not. All three named beneficiaries predeceased the testator, but three children of one sister and four children of the other survived. The trial court held that the nieces and nephews each took a one-seventh share.

However, the court in In re Estate of Mooney, 87 Cal. Rptr. 3d 115 (Cal. Ct. App. 2008), reversed, construing the statute to require that representation applies as if the deceased transferee’s own property were being distributed. Thus, the children of one sister receive 1/3 of ½ each and the children of the other sister, 1/4 of ½ each.