28 P.2d 711 | Cal. Ct. App. | 1934
The decedent left a holographic will in words and figures as follows:
"Los Angeles, California "June 17th, 1926
"I, Theresa Dorothea Combs, being of sound mind and body, and fully cognizant of what I am doing, hereby make this my last will and testament. I wish to appoint my daughter Theresa Gertrude Patterson, that she, without bonds have ample legal power to administer said Estate.
"I bequeath the sum of $1500.00 (fifteen hundred dollars) to St. Paul's english evangelical lutheran church located at Euclid Avenue and Eagle Street, Los Angeles, California, to be applied on a pipe organ.
"I bequeath the sum of $700.00 (seven hundred dollars) to my dear sister Mrs. Amalia Simis; also $200.00 (two hundred dollars) to my nephew Theodore E. Simis, son of my sister Mrs. Amalia Simis.
"The sum of $200.00 (two hundred dollars) to our highly esteemed Pastor, Rev. J.E. Hoick.
"Besides $100.00 (one hundred dollars) to my dear friend Mrs. Anna Engnell, in consideration of love and kindness received, when mostly needed.
"To my beloved grandsons, Theodore Franklin Combs Jr. and Paul Howard Combs, each $500.00 (five hundred dollars), this amount to be kept on investment, until said grandsons become of age, twenty one years resp., thereby increasing the amount.
"All the rest, residue and remainder of my Estate I hereby devise and bequeath to my dearly beloved children, Leslie Gustav, Theodore Franklin, and Theresa Gertrude Patterson, share and share alike.
"My personal property to go to my daughter Theresa Gertrude Patterson.
"THERESA DOROTHEA COMBS "Signature THERESA D. COMBS." *288
The will was admitted to probate and on September 28, 1928, an inventory was returned and filed which showed the estate to consist of the following items:
"Moneys belonging to said deceased, which have come to the hands of the .................... $ Cash in Bank of Santa Maria .................... 1446.61 " " California Bank, L.A. .................. 900.00 Promissory note of Theo. Combs for $500.00 due Oct. 17 — 1925 — Interest 7% — appraised at $500.00 Promissory note of Harry and Edith Hahn for $4250.00 due April 16 — 1927 — Interest 7 1/2% and secured by a mortgage on real property — appraised at ...................... 4250.00 Unsecured note of Sarah Barney for $500.00 due July 2 — 1927 — for 7% — appraised at .... 500.00 Unsecured note of Carl Stevenson for $1500.00 due July 8 — 1928 — Int. 7% — appraised at ... 1500.00 Unsecured note of Albert Grabe for $1,000.00 due Nov. 1 — 1927 — Int. 7% — appraised at ... 1000.00 Also real property situate in the County of Los Angeles, State of California, described as follows, to-wit:
"The Southeast 40 feet of Lot 16 Block `B', of Mountain View Tract, as per map in Book 24, p. 25 Misc. Records of said County — appraised at ............................... 4200.00 "Total ...................... $14,296.61."
Thereafter, August 5, 1932, she filed an account showing total receipts of $16,915.91, disbursements $5,846.34 and personal property on hand $11,069.57. With the account she filed a petition for final distribution in which she set forth:
"That according to the terms of the Last Will and Testament of said deceased, duly admitted to probate herein, said estate should be distributed as follows:
"That according to the terms of the Last Will and Testament of said deceased, duly admitted to probate herein, all of the personal property belonging to said deceased is bequeathed to Theresa Gertrude Patterson, now Theresa Gertrude Kovacs, your petitioner herein.
"That the only property belonging to said deceased at the time of her death undisposed of by will, after the foregoing *289 specific bequest, was a parcel of real property which was appraised at the sum of $4200.00. That said real property was improved with a small cheap house which was quite old, and very expensive to maintain, and which your petitioner was unable to sell until very lately, and during the interim between the death of said deceased and the time of the sale the property had so greatly depreciated in value by reason of the change of the vicinage to that of a less desirable nature, that your petitioner was unable to obtain a sum greater than $2,000.00. After paying an agent's commission and escrow charges, the net result of the sale was only $1848.35.
"From the foregoing it will be seen that said sum of $1848.35 is insufficient to pay the costs and expenses of administration, and your petitioner is informed and believes and upon such information and belief alleges that all of the bequests to St. Paul's English Evangelical Lutheran Church, Mrs. Amalia E. Simis, Theodore E. Simis, Rev. J.E. Hoick, Mrs. Anna Engnell, Theodore Franklin Combs, Jr., and Paul Howard Combs cannot be paid, and that each and every of said last named general bequests fail by reason of the fact that there are no funds belonging to the estate with which to make such payment, and that distribution of all of said estate should be made to your petitioner the said Theresa Gertrude Patterson, now Theresa Gertrude Kovacs."
St. Paul's English Evangelical Lutheran Church, one of the legatees, appeared and filed written objections to the petition for distribution. The court made a decree which, among other things, provided as follows: ". . . and orders distribution thereof as follows:
"To St. Paul's English Evangelical Lutheran Church ..................................... $1500.00 To Mrs. Amalia Simis, the sum of ............... 700.00 To Theodore E. Simis, the sum of ............... 200.00 To Rev. J.E. Hoick, the sum of ................. 200.00 To Mrs. Anna Engnell, the sum of ............... 100.00 To Theodore Franklin Combs, Jr., the sum of .... 500.00 To Paul Howard Combs, the sum of ............... 500.00
"The said legacies of Theodore Franklin Combs, Jr., and Paul Howard Combs to be kept on investment until they become of age. *290
"All personal effects of said deceased to go to Theresa Gertrude Kovacs, formerly Theresa Gertrude Patterson.
"All the rest, residue and remainder of said estate, wheresoever situate and whether described herein or not be and the same is distributed to the children of said deceased, share and share alike, to-wit, Leslie Gustav Combs, Theodore Franklin Combs, and Theresa Gertrude Kovacs, formerly Theresa Gertrude Patterson.
"The property of said estate hereby distributed so far as same is known is described as follows:
[1] From that decree the surviving daughter appealed. She contends the trial court erred in holding the words "personal property" as used in the last sentence were used in a restricted sense and meant "personal effects". She quotes section 106 of the Probate Code and she quotes from In re Brown's Estate,"Cash ......................................... $5,819.57 Promissory note of Harry Edith Hahn, payable in the sum of ............................. 4,250.00 Promissory note of Sarah Barney, payable in the sum of .................................... 500.00 Promissory note of Theodore Combs, payable in the sum of ................................ 500.00"
The order appealed from is affirmed.
Nourse, P.J., and Spence, J., concurred.