Estate of Herbert

California Court of Appeal Mar 21, 1955 No. Civ. No. 20688Published

Before: White

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Holding. The court held that a codicil does not republish a prior charitable bequest for the purpose of triggering the 30-day restriction period under the Probate Code when the codicil does not alter or disturb the original charitable gift.

Issues

Whether a codicil republishes a prior will's charitable bequest such that the bequest is subject to the 30-day restriction period of the Probate Code.

Disposition. affirmed

Quotations verified verbatim against the opinion

“bequests made in a will should not be set aside or disturbed by a codicil unless absolutely necessary in order to give effect to the codicil”

131 Cal.App.2d 666 (1955) Estate of HUGH FRANCIS HERBERT, Deceased. EDWARD F. HERBERT, Appellant,

MOTION PICTURE RELIEF FUND, INC. (a Corporation), Respondent.

Civ. No. 20688. California Court of Appeals. Second Dist., Div. One.

Mar. 21, 1955. Frederick W. Mahl, Jr., for Appellant.

Alpern & Vallier and Robert Vallier for Respondent.

WHITE, P. J.

This is an appeal from a judgment of the Superior Court of Los Angeles County upon a petition [667] filed by appellant to determine the persons to whom distribution should be made. The case comes to us upon an agreed statement of facts which reflects that on February 27, 1950, testator made a will bequeathing $10,000 in cash to one Rose Epstein Herbert, and the remainder of his estate to respondent Motion Picture Relief Fund, Inc., a charitable corporation.

On February 18, 1952, testator executed a codicil bequeathing the contents of a safe deposit box to one Tom Flynn. At the time of decedent's demise, the value of the estate was in the sum of $163,242.31, and included in said value was the contents of the safe deposit box in the sum of $8,500 in cash, which is 10 per cent of the entire net distributable estate.

Less than 30 days after executing the said codicil, and on March 12, 1952, testator died. Thereafter, on April 25, 1952, the court below made its order admitting the will and said codicil to probate "as the Last Will and Testament of said Deceased."

The testator left as his heirs at law and next of kin the appellant, Edward F. Herbert, who is a brother of decedent, and Grace Van Schyndel, who is a niece of the decedent, neither of whom were mentioned or specifically referred to in the above-mentioned will or codicil.

Judgment was rendered that respondent Motion Picture Relief Fund, Inc., is entitled to distribution of the full balance of the net distributable estate, pursuant to the foregoing will and codicil, and that appellant Edward F. Herbert and Grace Van Schyndel are entitled to no distributive share in said estate. This appeal is from the judgment.

Estate of Herbert

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WHITE, P. J.

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