Rankin v. Hatfield

SHINN, P. J.

Certain beneficiaries of the will of John W. Rankin appeal from a final decree of distribution of his estate, insofar as it declares that respondent, Mary E. Cox, is a beneficiary, contending that the court in probate misconstrued the will, which included three codicils. By holographic will dated August 12, 1941, Mr. Rankin made several specific . bequests and divided his remaining estate into two equal parts.

[185]

One part was left to his wife, outright, provided she survived him, otherwise to a trust. She survived him, and the provisions of the trust set out in paragraph 9 are not in question. By paragraph 8 the other part was placed in trust, the income to go first to the testator’s aunt, Julia K. Goldwater; secondly, to his wife; and third, to his wife’s sister, Honor Davis. The trusts were to terminate on death of the last surviving beneficiary. Codicil No. Ill, which is holographic, is the one in controversy here. It was written four days after the original will and reads as set out below.

1

At the hearing of the petition for distribution a controversy arose as to the rights of Mary Cox, created by codicil III. She contended that by that codicil she was added as one of the beneficiaries of the paragraph 8 trust, notwithstanding the fact that Mrs. Rankin was living at the time of the hearing. Rankin Hatfield, Louise Rankin Bloom, and Celia Bloom Rust, remaindermen under the will, contended that Mary Cox is not a beneficiary of the paragraph 8 trust for the reason that Mrs. Rankin was living at the time of the distribution of the estate in probate. The court agreed with the construction urged by Mary Cox and distributed one-half of the remainder of the estate to a trustee, under paragraph 8, to pay the income to the surviving wife (Julia Goldwater having deceased), during the life of the wife and on her death in equal shares to

[186]

Honor Iloyer Davis and Mary E. Cox if both be living, during their joint lives, and to the survivor thereof during her lifetime.