Burnett v. Meyer

TYLER, P. J.

Appeal from a decree settling a third and final account and of final distribution. The controversy arises over the shrinkage in the value of an estate due to the depression, and drought in the state of Nevada, where the greater part of the estate was situated. No fraud is charged in the administration.

The facts showed that decedent Jennie C. D. Meyer was the daughter of one William Dunphy, deceased. By the terms of the last will of the father, a part of his estate was left in trust during the lifetime of the daughter. She was given a power of appointment over one-eighth of his estate; that is to say, upon the death of Jennie C. D. Meyer the trust created by her father’s will terminated, and by the terms thereof the trust property was to pass to such person or persons as were appointed under the last will of Jennie C. D. Meyer to receive it. The daughter exercised the power of appointment. She

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made a will giving all of her estate, and also the interest in her father’s estate over which she had a power of appointment, to her surviving husband, respondent herein, as residuary legatee, subject to a trust to convert it into money when and as he deemed it advisable, and he was then given a direction as such trustee to pay appellants, and a sister, Mary D. Flood, and a brother, James C. Dunphy, the sum of $10,000 each when the money was available. The sister and brother are not parties to this appeal. Jennie C. D. Meyer died in the city and county of San Francisco on January 25, 1926, being at the time of her death a resident of said city and county. On March 1, 1926, X. Eo dwell Meyer, her surviving husband, respondent herein, qualified as executor under her will; letters testamentary were issued to him, and he has ever since been acting as such executor. The decedent, left estate consisting of real and personal property in this state, and also in the state of Nevada. The real property in Nevada consisted of some 20,000 acres of land of the value of about $80,000, and some 1,000 head of cattle of the approximate value of $60,000. At the time of her death the total value of decedent’s estate was estimated to be worth about $200,000. The estate has been in probate for some nine years and two accounts have been rendered and approved. For reasons hereinabove stated the estate has shrunken in value and little remains with which to pay the claims of the beneficiaries, and respondent has lost practically all of the large estate of which he was the residuary legatee. His third and final account was settled and approved and the estate ordered distributed. This is an appeal from the orders.