Estate of Dodge

EDMONDS, J.,

pro tem.

Albert Dodge died testate leaving his wife, Myrtle Colton Dodge, and three children by a former wife surviving him. Mrs. Dodge died before distribution of his estate, and the present proceeding was brought to determine whether or not money loaned by Mr. Dodge to his wife after the execution of his will constitutes an advancement under the terms thereof. The right of her estate to certain personal property mentioned in the will is also in dispute.

John B. Dodge, a son of Albert Dodge and a beneficiary under his will, petitioned the superior court in the probate proceedings to “construe the Will of said Albert Dodge, deceased and determine the true intent and meaning of said Will and of all the terms and provisions thereof, and by order and decree declare who are his heirs and who are entitled to the distribution of his estate when such estate shall be ready for distribution, . . . and that said court further find, order, adjudge and decree that said Albert Dodge did not by his said Will or otherwise make any advancement of any kind or nature to said Myrtle Colton Dodge, .and . . .. that said court determine, order, adjudge and" decree that the estate of Myrtle Colton Dodge, deceased, has no right claim or interest in any of the property belonging to the estate of said Albert Dodge, deceased; . . . ” The court rendered its judgment that Mr. Dodge made an advancement to his wife and that her estate is entitled to take the household furniture and the automobile bequeathed to her under the will. Prom this judgment petitioner appeals on the two points that the superior court had no jurisdiction to entertain his petition and determine the questions presented thereby, and that the judgment is not in accordance with the terms of the will.

By his will executed in April, 1929, Mr. Dodge gave to his wife all of the household furniture and an automobile. He then made certain specific bequests, and devised and bequeathed one-fourth of the remainder of his estate in trust

[653]

for his daughter. The testator then provided as item VIII: “All the rest, residue and remainder of my property and estate of every kind and nature whatsoever, I give, devise and bequeath in equal shares to my beloved wife, Myrtle Colton Dodge, and to my beloved sons, John B. Dodge and Howard Dodge, share and share alike, provided my said wife shall survive until the Executor of my Estate shall have been directed by the Order of the Court to distribute my estate under the provisions of my Will. If my said wife shall not survive until such order of distribution, then eight-ninths (8/9), of all the rest, residue and remainder of my property and estate hereinbefore mentioned in this Item VIII, of my Will, shall be divided equally between my two sons, John B. Dodge and Howard Dodge, and the remaining one-ninth (1/9), of said rest, residue and remainder of my property and estate shall be assigned, transferred and set over to the Trustees hereinbefore mentioned in Item VII of this my Will, ...” -