139 Cal. App. 571 | Cal. Ct. App. | 1934
The question involved on this appeal is whether or not, under the will of the decedent, sums provided therein for the support of certain beneficiaries are chargeable against the corpus of the trust estate, the income therefrom being insufficient for thé purpose.
Decedent died February 12, 1930, leaving a will dated December 4, 1929, and'a codicil thereto dated January 31, 1930. The will and codicil were admitted to probate and John A. Sullivan, Carlo Serbolisca and George E. Lask were appointed executors thereof. By her will decedent bequeathed general legacies aggregating $15,500 to certain
It is their claim that the annuities are gifts of income only and that it was not the intention of the testatrix to invade the corpus of the trust estate to supply any deficiency of the net income to pay these annuities. In support of this contention it is argued that there is no word or phrase indicating any intention to make their payment a charge upon the general trust property itself, or a purpose that the trustees should pay at all events, regardless of the sufficiency of the net income; but, on the contrary, the language of the will and the character of the dispositions embraced in it not only negative an intent that corpus might be used, but establish an intent that it should not be so used. In this connection appellants draw our attention to the fact the will provides that after the payment of the annuities the net income is to be paid to certain named institutions and the corpus is not to be disposed of until after the death of such annuitants. The fact that there is a specific devise over without limitation is stressed as indicating that the corpus was not to be charged. "We are cited to several cases in support of the construction contended for by appellants.
In the construction of wills, the intention of the testator controls and, as it is admitted, citation of authority is seldom useful as the intent of a testator is to be ascertained from the will itself. It is perfectly manifest from a reading of the will and codicil that it was the main and primary concern of the testatrix to take care of the two annuitants during their respective lives. The share of the remaindermen was postponed until the annuitants had been cared for during their lives. It is clear from a reading of the will and codicil that the testatrix was more solicitous about the welfare of the two annuitants than she was of the remaindermen. Her intent in this connection is plainly indicated by the terms of the codicil, for her executors were directed to pay such annuitants the amounts provided, during the probate of her estate, for their maintenance and support. There is no provision for the enjoyment of the corpus by the remaindermen until after both these preferred annuitants are dead. In short, the entire instrument shows conclusively the intent of the testatrix was that the
Respondents raise the point that the appeal is not well taken for the reason the order is not appealable, as it is not one set forth in section 1240 of the Probate Code. While we are of the opinion that there is merit in the objection, the question would be raised following distribution. For this reason we have decided the appeal on its merits.
The order.is affirmed.
A petition for a rehearing of this cause was denied by the District Court of Appeal on August 4, 1934, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 30, 1934.