144 P. 957 | Cal. | 1914
This is an appeal from a judgment and decree of final distribution in the estate of Andrew Carothers, deceased.
There has been an appeal in this estate which involved the validity of a decree of partial distribution. (Estate ofCarothers,
The petition for final distribution of the entire real property of the estate to the heirs of Elizabeth Witherspoon was duly filed and those who appear as appellants here presented their answer to said petition, in which they asserted that Kate A. Carothers, widow of John Thomas Carothers, entitled to have distributed to her a half interest in the said land, had given her deed of trust to W.B. Waldron, trustee, as security for *693 the payment of a promissory note executed by said Kate A. Carothers to Charles E. Snook, and Wm. M. Sims. The answer contained averments that Andrew Carothers had intended by his will to devise his real property to Eleanor Carothers, his wife, and William P. Carothers, his son, to be held by them during the lifetime of Eleanor, and that at her death the title should vest absolutely in William P. Carothers; that if William should die without issue during the lifetime of Eleanor, then the property, after Eleanor's death, should go to John Thomas Carothers for his life, and at his death to Elizabeth Witherspoon or her heirs; and that in the event of William outliving Eleanor, all of the real property should become his absolutely. There were also allegations in the answer that William outlived Eleanor and took the fee to the realty charged only with a lien to pay certain specific legacies. It will thus be seen that the contentions made by appellants on this appeal are exactly the same as those of the respondent which were rejected by this court in the appeal from the decree of partial distribution.
Appellants insist (1) that the former decision is not the "law of the case"; (2) that all the evidence offered by them at the hearing of the contest was proper, and (3) that under the offered evidence and the true rules of construing wills the court should have interpreted the will of Andrew Carothers according to the contentions set forth in the answer. Upon the question of the "law of the case" appellants say that the rule should not apply to this appeal because here the same parties are not concerned as those interested in the appeal from the decree of partial distribution, and because in the hearing of the contest of the proposed final distribution facts and circumstances surrounding the execution of the will were developed which were different from those adduced at the hearing on the petition for partial distribution. Respondents make answer to this point that in both distributions the title of the unsuccessful claimants depended upon the alleged interest of Kate A. Carothers, widow of John Thomas Carothers, and that a binding and final interpretation of the will having been made on the former appeal, new facts developed at the hearing of the petition for final distribution could in no manner avail to change that interpretation. We think this position is correct. The interpretation of the will on the appeal from the decree of partial distribution was a determination *694
of a question of law. All such interpretations must be decisions of the law whether the court construes the will with or without resort to extrinsic facts. (Estate of Donnellan,
The judgment and decree are affirmed.
Shaw, J., Angellotti, J., Lorigan, J., Sloss, J., and Henshaw, J., concurred.