108 Cal. 463 | Cal. | 1895
After a full consideration of this cause in Bank we are satisfied with the conclusion reached in Department, and with the opinion of Mr. Justice Harrison therein delivered. In accordance with said opinion the superior court is directed to modify the decree of distribution by striking therefrom the following proviso: “Provided that the sum of one hundred dollars of said distribution shall have been heretofore re
The following is the opinion of Mr. Justice Harrison above referred to, which was rendered in Department One, December 14, 1894:
—C. C. Garrity died testate June 4,1890. His will was admitted to probate in the superior court ■of Contra Costa county, and letters testamentary thereon issued to Jámes Garrity, November 24, 1890; and on January 7, 1891, the executor filed an inventory of the ■estate, which was appraised at $24,681.36. By his will the testator made certain legacies amounting to $2,500, •and gave to his wife “ all and singular my property, real, personal, and mixed, of every kind and character, wheresoever situated, to have, to hold, and to enjoy for the term of her natural life only, and not otherwise”; and in a subsequent item gave to three of his children, of whom the appellant is one, “ all and singular, the rest, residue, and remainder of my estate and property, real, personal, and mixed, of every kind and character, and wheresoever situated, remaining upon the termination of the life estate hereinbefore granted and bequeathed to my said wife.” The entire estate was community property, and, after paying the debts and expenses of administration, there remained in the hands of the executor certain real estate, which was appraised in the inventory at $13,040; certain personal property, consisting chiefly of farming implements, appraised at $188; and the sum of $8,068.74 in money, which was on deposit in the bank at the testator’s death. January 23, 1892, the executor filed a supplemental inventory, setting forth that he had received from the testator two watches and a gold chain, and had •disposed of them in accordance with certain instruc
1. It is claimed by the appellant that the court could not make an order for a family allowance to the widow, under section 1466 of the Code of Civil Procedure, unless there had been previously set apart to her the property authorized by section 1465, and it had been determined that the property thus set apart was insufficient for her support; that, as the inventory showed there was property of the estate out of which a homestead might have been set apart to the widow, and, as no application had been made therefor, the court had no jurisdiction to make the order of family allowance. The right of a family to an allowance for its support is not, however, contingent upon a previous order setting apart a homestead for its use. Whether a homestead be' set apart or not, section 1466 confers upon the court the power, in its discretion, to “make such reasonable allowance out of
2. At the hearing, upon the settlement of the final account, the appellant made the objection that the watches and chain mentioned in the supplemental inventory were not accounted for in said account, and thereupon evidence of their value was taken by the court. It is recited in the bill of exceptions that, after
3. It is contended by the appellant that the widow was not entitled to the possession of the personal property, in which she was given only a life estate, but that the superior court, instead of distributing the property directly to her during the term of her life, should have
A consideration of the terms of the will before the court leads to the conclusion that it was the intention of. the testator that his widow should have the possession: of the property bequeathed to her without being required to give any security for its preservation. If he had intended that, upon the death of his widow, his children should receive the entire estate given to her, or that she should receive only the income thereof, it is reasonable to suppose that he would not have qualified the character of the estate which he gave to them; but the language used by him in the bequest to them indicates that such was not his intention. After giving to her for the term of her natural life “ all” of his property, of every character, he gives to the three designated children the rest, residue, and remainder of his estate and property remaining upon the termination of the life estate granted to the widow. Instead of giving to them the same property and estate by way of remainder, after the termination of the life estate, he expressly limits the property given to them to the “rest, residue, and
4. In the decree of distribution the court added to the clause distributing the personal estate to the widow the following: “ Provided that the sum of one hundred dollars of said distribution shall have been heretofore received by Thomas Garrity, and that the sum of fifteen dollars has been received by James Garrity.” No reason is assigned for inserting this condition in the decree of distribution, and we are of the opinion that it should not be included therein. The decree of distribution is intended to be a final disposition of the estate, and not contingent upon the establishment at some future time of the existence of such condition. If, as is suggested by the respondent, the money thus referred to represents the value of the watches, as his executor was charged for that value in his account, there would be no occasion for inserting this proviso. The executor has not, however, appealed from the decree, and the rights of the appellant are not affected by this clause.