Deacon v. Descendants of Betty Swanson

SHEPARD, J.

This is an appeal from an order of the probate court denying a petition to determine heirship on behalf of certain legatees named in the will of deceased.

By her will made April 17,1937, deceased provided in Paragraph Second thereof for the sale of certain property located on Nineteenth Street in the city of San Diego, and the application of the proceeds thereof to pay encumbrances and certain debts of her husband Daniel A. Deacon. The last sentence of said paragraph reads as follows:

1 ‘ If there should be a balance after the payment of the notes as set forth herein, then such balance is to be distributed as hereinafter set forth.”

Paragraph Third directs the sale of certain other property, the payment of another debt of her husband, and the distribution of the balance, if any, to a friend Mrs. Kathryn Brunne. Paragraph Fourth directs the leasing by the executrix of certain warehouse property and the payment of certain debts and encumbrances. Paragraph Fifth reads as follows:

“After my said Executrix has disposed of all other property which I own at the time of my death, including the Commercial Street Lots, then I direct that said Executrix sell said warehouse property for the best price obtainable, and apply said proceeds to pay off any encumbrance which may

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exist against, said warehouse and distribute the balance as follows:

“ (1) Ten & 00/00 Dollars ($10.00) each to my stepchildren, Bernard Deacon, Dorothy Deacon and Betty Deacon: of San Diego, California;

“(2) One-fifth of the balance to each of the following:

Mrs. Agnes Clark, my cousin, of El Cajon, California;

Mrs. Kathryn Brunne, of 1510 State Street, San Diego, California ;

Victor LeFrooth, my brother, of Strandquist, Minnesota;

Anna Erickson, my sister, of Strandquist, Minnesota;

Victor Holmstrom, my cousin, of Strandquist, Minnesota. ’ ’