183 P. 440 | Cal. | 1919
Deceased died testate May 31, 1917, leaving an estate aggregating in value nearly eighty-four thousand dollars. On July 6, 1914, when eighty-one years of age, he had legally adopted as his child one Alice May Riley, thereafter known as Alice May Ballou. In his will, executed May 16, 1916, he made provision for her as follows: "Secondly, I give, devise and bequeath to my adopted daughter, Alice May Ballou, the sum of ten thousand dollars in cash." This was the only provision which in any way referred to her. The residue of his property was left to his lawful nephews and nieces. Upon application by her for distribution of this legacy, the court below decreed payment to her in full satisfaction of the legacy, the sum of ten thousand dollars, together with interest from May 31, 1918, which was one year after the death of deceased. We have here an *63 appeal by such child from the decree in so far as it refused interest for the year immediately following the testator's death. The sole question on the appeal is as to the date from which interest should be paid on the legacy.
The child was within a few days of eleven years of age at the date of the making of the will, and she was, in substantial part at least, supported by deceased from the time of her adoption to the date of his death. The court substantially found that at the time of the death of deceased she possessed no other property or source of maintenance. The evidence showed that she and her mother had been abandoned by the father in the year 1910, and that the father thenceforth had contributed nothing to the support of the child. At the time of the adoption, deceased deposited four hundred dollars in a bank for the support of the child and its mother, and continuously thenceforth she lived either in an apartment provided for her and her mother by deceased, or at a convent school, where the cost of her maintenance was paid by deceased. He also paid bills incurred to provide her with food. Some question appears to have arisen between the mother and deceased as to whether he was furnishing sufficient support, the mother commencing a suit against deceased in March, 1916, to compel him to furnish the same. This action was pending at the time of his death.
[1] In the absence of provision in the will, the matter of interest on legacies is controlled by our statutory regulations in that behalf. By section
[4] That under the law regulating the administration of estates of deceased persons the legatee was entitled, as the child of deceased, to receive a family allowance for her support pending the settlement of the estate we regard as entirely immaterial in this connection. Such a situation in no way affects the question of the character of the legacy as being one for maintenance or otherwise. Notwithstanding the right to family allowance for the few months of pendency of administration, the legacy is still a "legacy for maintenance," and, in so far as the matter we are discussing is concerned, section
That the legatee, as a minor child of deceased, was in fact allowed, and did in fact receive, a family allowance pending administration, as well as a homestead, we must likewise regard as immaterial on this appeal. Obviously such matters can have no bearing on the question of the character of the legacy, and are material, if at all, only upon some such theory as that by accepting certain benefits given her as the child of the deceased by statute, she has elected to take those benefits in place of certain benefits given her by the will. There is, however, nothing in the will upon which it may be claimed that the child was put to an election in this matter, and this being so, her receipt of the benefits accorded her by the law as a child of deceased from the funds of the estate in no way affects her rights as a legatee. (See Estate of Cawell,
In so far as the decree disallows interest on appellant's legacy for the year commencing May 31, 1917, it is reversed.
Shaw, J., Wilbur, J., Olney, J., Lennon, J., Lawlor, J., and Melvin J., concurred. *66