DeParcq v. O'Brien

EDMONDS, J.

A controversy between the heirs of William Beldon, deceased, over the construction of his will has reached this court upon an appeal from a final decree of distribution of his estate.

By an holographic will the testator made certain specific bequests, among which is one of $30,000 to his sister, Rose DePareq. He also provided as follows: “My sister Rose is hereby appointed administratrix & executrix without Bonds

[110]

of this will, to the legal Descendants of Roberts (Pat) Nellies 3 children Rosemary & Will & Frances & His 2 Grandchildren 15 per cent of the balance of my estates and 10 per cent to Mikes son. after all my just Debts are paid anyones who tries to interfere with the purpose & intent of this will shall Be cut off with an allowance of not over $1.00 inheretance under this will.” The probate court held that by the language “Rosemary & Will & Frances” the testator referred to the three children of Nellie Ameling, his deceased sister. The expression “& his 2 Grandchildren” was intended by the testator, the court found, to refer to the two children of Catherine Andres, the deceased daughter of his deceased brother, Robert, or Pat, O’Brien. This brother also had two sons, who are now living and who will share in the estate under the clause mentioning his “legal descendants”. Another finding of the court is that by the words “Mikes son” the testator referred to William» Loftus O ’Brien, the son of William O’Brien, another deceased brother. A further intent of the testator, as found by the probate court, was that his will should dispose of all of his property. Upon these findings 7% per cent of the residue of his estate was distributed to each of the “2 Grandchildren”, 10 per cent to William Loftus O’Brien, and 15 per cent to each of the other persons. Rose DeParcq and William Loftus O’Brien appealed from that determination.

The testator’s family name is O’Brien. He and his brothers and sisters were orphaned early in life and were “farmed out” to neighboring families. At the age of fifteen the testator ran away from his foster parents to make his own way in the world. Different occupations carried him to the far corners of the earth, and for many years his relatives knew nothing of his whereabouts. During and after the World War he was a member of this country’s secret service, and it was then that he changed his surname to Beldon. The testator never married and in his later years he sought out his sister Rose O’Brien DeParcq and his nieces Rosemary and Frances, who are the daughters of his deceased sister, Nellie. In the course of the few visits and the correspondence that followed, a cordial friendship developed, especially between him and his sister. Rose. It was she who, at a time prior to the making of his will, furnished him with