130 P. 868 | Cal. | 1913
The testatrix, Nellie Glass, died in 1907, leaving the following will which was duly admitted to probate:
"Oct. 10, 1901.
"At my death if my dear husband Mack Glass is living I want him to have all my property. Then at his death I want my brother Dr. J.K. Miller to have $500.00 five hundred dollars. Also my two sisters Sarah Mawhinney and Dell Nesbit to have $500.00 five hundred dollars each. Then what is left I want to go to Thos. Glass my husband's father. If my dear husband Mack Glass is not living then I want my brother Dr. J.K. Miller to have $500.00 five hundred dollars. Also my two sisters Sarah Mawhinney and Dell Nesbit to have $500.00 five hundred dollars each. The balance to go to father Glass's estate. The old family dishes to be divided between my two sisters Sarah Mawhinney and Dell Nesbit. The dear old clock to go to my brother Dr. J.K. Miller. My old watch I give to Rosa Nesbit and father Miller's watch to Bernell Miller my nephew.
"NELLIE GLASS.
"Corona, Cal., Oct. 10, 1901."
The construction of the will coming before the court under a petition for distribution, an appeal is taken from the decree by certain disaffected heirs of Thomas Glass. The controversy is over the sentence "The balance to go to father Glass's estate." The only facts pertinent to the consideration, besides those appearing upon the face of the will, are that at the date of the execution of the will Thomas Glass was living but died before the death of the testatrix. It is intimated, but not found, that the word "estate" was written by testatrix in the will after the death of Thomas Glass. It would seem to be not improbable that such is the case, but nevertheless, *767
the formalities attending the execution of a codicil were not observed and the legal result is that the will must be construed as a single instrument executed at the date it bears. (In reParsons,
The decree appealed from is therefore affirmed.
*768Melvin, J., and Lorigan, J., concurred.