Templeton v. Mooney

SPENCE, J.

Two appeals are involved herein. Appellant, as executor of the last will and testament of the deceased, petitioned the probate court for settlement of his account and for distribution of the estate. Respondent, who had theretofore filed an action for declaratory relief, filed objections to appellant’s petition. By stipulation of the parties, the hearing on the petition and the trial of the declaratory relief action were had at the same time. Appellant appeals from the decree of distribution and from the judgment in the declaratory relief action.

Both controversies arise out of the conflicting contentions of the parties regarding the effect of the following paragraph of the will of the deceased:

“I give, devise and bequeath unto my beloved son Karl Templeton Mooney all of my estate whether real, personal or mixed and wheresoever situated. I hereby request, however, that my beloved son, Karl Templeton Mooney, pay to my beloved brother, Walter H. Templeton, the sum of five thousand dollars ($5,000.00) from the property devised and bequeathed unto my beloved son, Karl Templeton Mooney under the terms of this, my last will and testament.”

The court below sustained the contentions of respondent and held that the foregoing provision constituted

“a

mandatory request and direction” and a “valid and binding obligation” upon appellant. The residue of the estate was therefore distributed tp appellant “subject, however, to the claim of said Walter H. Templeton for payment to said Walter H. Templeton by said Karl Templeton Mooney” of said sum

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of $5,000 and declaring the obligation to pay said sum “to be a charge and lien against and upon all of the property of said estate until said sum is so paid”. The judgment in the declaratory relief action contained similar declarations.

Appellant contends that the court below erred in denying his petition to distribute the residue to him absolutely and in entering judgment in favor of respondent in the declaratory relief action. In our opinion this contention must be sustained upon the authority of