66 Cal. 157 | Cal. | 1884
-This appeal was heard in department one of this court, and an opinion filed therein July 25, 1884. Subsequently, a hearing by the court in Bank was granted. Such hearing has been had. We are satisfied with the judgment given in department, and with the reasons therefor. The judgment of the court below is therefore affirmed, except as to interest. The cause is remanded, with instructions to modify the judgment by computing interest in accordance with the opinion of the department.
The following is the opinion of department one:
-The provision of the will of the deceased, James Dunne, charging the legacies to the plaintiffs upon the estate devised to the defendant, is unequivocal. It reads :
“ Idem. I give and bequeath out of the estate by me given to my son, James Francis Dunne, and as a charge thereon, ten thousand dollars ($10,000) in gold, to each of my daughters, Mary Felita Dunne and Bridget Caty Dunne, with the privilege, however, to my said son James Francis to satisfy said legacies by conveying to each of my said daughters a tract of land of the value of ten thousand dollars ($10,000) in gold, or, at his option, to invest the said sums for my said daughters in tracts of land of the said value.”
The testator died on the eighth day of June, 1874. His will was duly admitted to probate on the first day of August of the same year. At the time of the death of James Dunne, the defendant was a minor, but he attained his majority on the fourth day of July, 1875. He then accepted the devise to him. Such is the effect of the findings of the court below, and the evidence is sufficient to sustain them. It shows beyond controversy that, with knowledge of the will and its provisions, he received as devisee the rents of the devised property, and this from the date of his majority. In taking the benefit conferred, he assumed the burden imposed by the testator, and thereby became personally liable to pay the legacies. This obligation he was, however, authorized by the will to discharge, by conveying to each of the legatees named a tract of land of the value of $10,000 in gold, or by investing thát sum for each of them in lands of that value. His election in that behalf he was bound to make within a reasonable time.
It is contended by counsel for appellant that the time for his election had not arrived when this action was commenced, nor has it yet arrived, because of the fact that there has been no distribution of the estate of the deceased, James Dunne; that until distribution is made, defendant cannot know what he will receive. It is undoubtedly the general rule, that a party is not bound to make an election until all the circumstances are known, and the state, condition, and value of the property is ascertained. But this rule, like all other general rules, should be applied only when it is reasonable to apply it, and when its
But in one particular we think there was error in the court below. Looking at the whole case—considering the condition
Cause remanded, with directions to the court below to modify the judgment in accordance with the views here expressed.