86 P. 1107 | Cal. | 1906
This is an appeal by Giambatista Ratto, guardian of Antonio Ratto, a minor, from an order of the superior court refusing to make an order directing the sale of real property of the estate of said deceased to pay a legacy to said minor.
Guisseppi Ratto died leaving a will. By the first paragraph of the will the testator directs the payment of his funeral expenses, etc.; by the second paragraph he gives to his four daughters, naming them, and to his grandson, said Antonio Ratto, "each the sum of $200"; by the third paragraph he gives to his five sons, naming them, a certain described piece of land containing about seventeen acres, which he owned at the time of his marriage, and was therefore his separate property; by the fourth paragraph he gives to his wife, Angela Ratto, "one half of all the remaining real property now held by me, which said real property was acquired and possessed by me after my marriage with my present wife, said Angela Ratto, and to which one half she *554 is legally entitled under the laws of the state of California." And the fifth paragraph, which is the one mostly discussed by counsel, is as follows: —
"Fifthly. I give and bequeath to my five sons, John Batista Ratto, Joseph Ratto, Benedicto Ratto, Antonio Ratto and Peter Ratto, share and share alike, the remaining one half of all the real property acquired and possessed by me after my marriage to my present wife, Angela Ratto, and all the rest, residue and remainder of the personal property of which I may die possessed, after the payment of the legacies provided for in clause above marked `secondly' of this will."
It appears that all the personal property of the estate has been exhausted by the payment of the expenses of administration, family allowance, etc., and that there is no personal property out of which the said legacy to Antonio Ratto can be satisfied; and respondents contend, and the court below held, that the legacy must fail because under the will it was to be a charge on the personal property alone. We see no such provision in the will. Certainly the second clause, in which the legacy is given, does not provide that some particular property or fund must be resorted to for its payment; it is general and unconditioned. Nor does the fifth clause direct that it should be a charge only upon the personal property, and there is no other provision in the will on the subject. Therefore, leaving out of view for the present any intent of the testator as expressed in the will, the general rule on the subject would prevail, which is, as stated in section
We do not consider the fact incidentally appearing in the transcript that some of the real property was set apart to the widow and minor children as a homestead; for the transcript contains an express stipulation "that the only question involved in this proceeding is the question as to whether or not, under the terms of the will of decedent, any of the real property in this estate is chargeable with the payment of the legacy herein involved."
The order appealed from is reversed, with directions to the court below to order sold so much of the real property of the estate devised to appellants, other than the seventeen-acre tract, as may be necessary to satisfy the legacy of two hundred dollars to Antonio Ratto.
*556Henshaw, J., and Lorigan, J., concurred.