251 P. 202 | Cal. | 1926
This is an appeal from an order of the superior court in and for the county of Los Angeles, denying the petition of the appellants for an order of said court compelling the executor of said estate to pay out of the funds of said estate the balance remaining due upon a certain indebtedness of the decedent, secured by a mortgage upon certain real estate, and to thereby relieve the real estate of the encumbrance and penalties of said mortgage through the settlement and dismissal of an action to foreclose said mortgage pending at the time of filing said petition and of the denial thereof by said court. The facts are not in dispute. Mary E. Metcalfe died in Los Angeles on or about the eighteenth day of November, 1921, being at said time *718 and having been for several years prior thereto a resident of the county of Los Angeles. At the time of her death she was occupying as her residence the real property involved in the controversy. In the year 1920 the deceased and her mother, Fannie Jennings, had acquired said property as joint tenants, and as a part of the purchase price thereof they had given back to the grantors a mortgage thereon for the sum of $5,600, which secured two notes executed by them, each for the sum of $2,800, one of which was to become due on or before June 20, 1922, and the other on or before June 20, 1923. Mary E. Metcalfe left her last will and testament, executed upon March 15, 1921, and which will was admitted to probate on May 26, 1922. The following are the provisions of paragraphs I and II thereof:
"I desire that my just debts be well and truly paid as soon after my decease as conveniently may, from whatever ready cash I may have on hand at the time of my decease, and in case of insufficient cash on hand at the time of my decease, that the remainder of my said debts be paid from the rents from my flat building known as No. 282 and 284 South Rampart street, City of Los Angeles, State of California.
"I hereby give, devise and bequeath unto my beloved mother Fannie Jennings of the City and County of Los Angeles, California, my residence known as No. 5334 Victoria Avenue, City and County of Los Angeles, California, also three promissory notes made and executed and delivered June 1st, 1920, by H.M. Kirchbaum of Sioux City, Iowa, wherein and whereby he promised and agreed to pay to me the sum of $4400.00 on the first days of June, 1922, $4400.00 on the first day of June, 1923, and $4400.00 on the first day of June, 1924, the same being three of a series of five notes of the same amount and date each for $4400.00 and which said series of notes were secured by a certain real estate mortgage on property in Sioux City, Iowa, which said mortgage I hereby also give, devise and bequeath unto my said mother for the use of herself in the foreclosure or collection of the said notes. I also desire that the said notes be collected, and the proceeds thereof, or so much thereof as may be necessary, be applied upon the payment of the indebtedness against the residence herein given *719 to my said mother, and the balance of the proceeds of the collection of the said notes be paid to my mother, by my executor hereinafter named."
The foregoing will having been duly admitted to probate, V.M. Smith, who was named therein as executor of said will, having been duly appointed and having qualified as such executor, on the twenty-fourth day of June, 1922, presented an application to said court, setting forth that one of said notes secured by the aforesaid mortgage had become due and that he had collected and had on hand from the source provided for in said will for the payment of said notes, sufficient money to pay the first of said notes then due, and he therefore prayed for and in due course received an order authorizing and directing him to pay said note, and also to pay the interest then due upon said mortgage to date; and the said note and interest were thereupon paid in accordance with said order. Thereafter, and on August 3, 1925, a petition was presented to said court by Edd Jennings, Claude Jennings and Martina Jennings, the latter two of whom are the appellants herein, asking for an order to compel the executor to pay the principal and interest due upon the second of said promissory notes, amounting to the balance secured by said mortgage, and to relieve said property from the lien thereof. It was set forth in said petition that the executor had made collection of the funds provided in decedent's said will for the payment of said indebtedness, and had such funds on hand; that in the meantime an action had been commenced to foreclose said mortgage, which action was then pending, and petitioners prayed that said executor be required to settle and cause to be dismissed said action and to relieve said property from the encumbrance of said mortgage and of the threatened foreclosure thereof. The respondents herein presented an answer to said petition, admitting, in the main, the allegations thereof, but denying that it was the duty of said executor under the terms of the will to pay and discharge the mortgage; and further setting forth that Fannie Jennings, the mother of said deceased, had acquired the whole of said property not under and by virtue of the last will of said deceased, but under and by virtue of her right of survivorship as a joint tenant with her said daughter in the ownership of said property, and that subsequent to *720 the death of said deceased, and prior to her own death on November 2, 1922, Fannie Jennings conveyed said property and the whole thereof to Claude Jennings, one of said petitioners and appellants herein, who had thereby become of record the owner and holder thereof. The said petition having come on for hearing upon the issues tendered by the answer of the respondents thereto and the foregoing facts having been presented in evidence, the court made and entered its order denying said petition, from which order this appeal has been taken.
The main question presented is as to whether or not under the terms of said will above quoted the executor was thereby required to pay and satisfy said mortgage out of the specific funds provided in said will for the payment of said notes and mortgages, the contention of the executor being that the language of the will in relation thereto is merely precatory and does not amount to an express direction by the testatrix which would be binding upon the executor of her estate.
The language of said will upon which the foregoing contention of the respondents is predicated is as follows: "I also desire that the said notes be collected and the proceeds thereof, or so much thereof as may be necessary, be applied upon the payment of the indebtedness against the residence hereby given my said mother and the balance of the collection of said notes be paid to my mother by my executor hereinafter named." It is a cardinal rule for the construction of wills that the intention of the testator is to be ascertained from the words of the will read as a whole and taken in view, when necessary and appropriate, of the circumstances under which it was made. (Estate of Heydenfeldt,
The order is reversed, with instruction to the trial court to make and enter its order granting the petitioners' application in conformity with the views expressed in the foregoing opinion.
Shenk, J., Sullivan, J., Waste, C.J., Seawell, J., and Curtis, J., concurred.
Rehearing denied. *724