288 P. 122 | Cal. Ct. App. | 1930
This is an appeal from a decree of distribution and settlement of final account. The appeal is taken on typewritten transcripts.
The appellants Charles Del Re and Teresa Del Re took a life estate in certain real property in the city of Tulare under the will of Angiola Bacigalupi, deceased. By the terms of this will their interest in the property was to terminate *580 upon the death of either one of the devisees and the entire estate was then to go to their six children named in the will. The will contained numerous bequests to relatives of the deceased and left the residue to a nephew and to a friend in equal shares. The total value of the estate for purposes of distribution was found to be over $76,000, of which amount over $31,000 made up the residue devised to these two individuals. In settling the account and decreeing distribution the trial court determined that all legacies should bear a proportionate amount of the costs of administration and for that purpose allotted the sum of $1,659.88 to these appellants, making that sum a charge upon the life estate devised to them.
[1] On this appeal the single question involved is whether the expenses of administration should thus be proportioned among the legacies or charged entirely to the residuum. Appellants rely upon the provisions of section
In order that we may better understand the point involved we quote the two code sections in full: "1359. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of debts, in the following order: One. The property which is expressly appropriated by the will for the payment of the debts; Two. Property not disposed of by the will; Three. Property which is devised or *581 bequeathed to a residuary legatee; Four. Property which is not specifically devised or bequeathed; and, Five. All other property ratably. Before any debts are paid, the expenses of the administration, and the allowance to the family, must be paid or provided for." "1563. The estate, real and personal, given by will to legatees or devisees, is liable for the debts, expenses of administration, and family expenses, in proportion to the value or amount of the several devises or legacies, but specific devises or legacies are exempt from such liability if it appears to the court necessary to carry into effect the intention of the testator, and there is other sufficient estate."
In support of the decree the respondent argues that there is an irreconcilable conflict between section
The order is reversed, with directions to modify the decree in accordance with the views herein expressed.
Sturtevant, J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 6, 1930, and a petition by respondent 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 7, 1930. *584