Estate of Herman

[56]

PATROSSO, J. pro tem.

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This is an appeal by Pearl Canis from an order instructing the executor of the last will and testament of the above named decedent to sell an automobile and household furniture constituting a part of the decedent’s estate which property by the will was specifically bequeathed to the appellant.

The decedent died testate leaving surviving as his sole heirs-at-law seven brothers and sisters including the appellant. His will which was admitted to probate was witnessed by only two persons, one of whom is the appellant. After providing for a number of specific devises and bequests including the one previously mentioned to the appellant the testator devised and bequeathed the residue of his estate in trust to the extent of $10,000 for the benefit of his niece Eebeeca Plammes. The will is silent as to the intended beneficiaries of the balance of the trust in the event the residuary estate should exceed $10,000.

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The respondent executor filed with the court below his petition for instructions wherein he set forth that by the terms of the will a 1956 Oldsmobile and certain household furniture stored at the Bekins Van and Storage Company was bequeathed to the appellant; that the automobile and furniture were depreciating property and in addition charges were being incurred for the storage of the furniture; that certain of the beneficiaries under the will other than the appellant had made demand upon the executor that the automobile and furniture be sold immediately claiming that the bequest of these items to the appellant was invalid under Probate Code, section 51, by virtue of the fact that she was a subscribing witness to the will and that appellant had notified the respondent that she would not consent to the sale of said items. The respondent prayed the instructions of the court as to “Whether the specific bequests to Pearl Canis, to-wit, the 1956 Convertible Oldsmobile automobile and the household furniture, mentioned in the will of the deceased, should be sold as depreciating property under Section 770 of the Probate Code.” Upon the hearing of the petition the court below made the order previously mentioned from which this appeal is taken.

In his brief respondent states that he takes no “position as to the applicability of Section 51 of the Probate Code upon the specific gifts to Pearl Canis” but that it is his contention