Thramm v. Bank of America National Trust & Saving Ass'n

SHINN, J.

The instant appeal was taken from an order interpreting the will of Maria Thramm. The will disposed of the estate which remained after the payment of debts and expenses as follows: “To Mr. Ernst and Walter Thramp now living in Berlin Germany, 37 Steinmetz Str $2000 each and if they be deseased to their heirs. Also my husband’s watch, his mother’s diamoi ring, cuff buttons and old ring should go to Ernst and Walter Thramp”; then followed eleven specific bequests of cash, jewelry and United States war bonds to relatives and friends in the United States. Bank accounts, trust deeds and other securities were listed and described in detail, and following this the will provided: “A year after my death my estate should be settled if it is impossible to do so, with Germany, then everything should go to my brothers Otto & Fred Tilsner and

her

children.”

[658]

The court construed this clause to mean “that if the war between Germany and the United States is not concluded within one year after testatrix’ death then the sum of $4,000 shall go in eight equal shares to the following persons, to wit: [naming Otto Tilsner and Fred Tilsner and their six children] . ”

Notice of the hearing of the petition for interpretation of the will was served upon the Alien Property Custodian. The order interpreting the will recites that the German beneficiaries were represented at the hearing by an attorney duly admitted to practice in California. The notice of appeal is signed by him as attorney for such heirs and it is stated in the brief that he was appointed to represent them by the Alien Property Custodian. The appeal is taken by Ernst and Walter Thramp from the portion of the order above quoted.

The will was olographic and was dated February 3, 1942. Mrs. Thramm died June 7, 1943, and the order interpreting the will was made December 2, 1943. The petition of the executor for interpretation of the will alleged that the executor was in doubt as to how the estate should be distributed. No facts were alleged as to the necessity for an interpretation of the will prior to the hearing on a petition for distribution. The executor, so far as appeared, had nothing to do apart from the usual procedural steps, to and including the rendering of a final account and petition for distribution.