Estate of Moran

California Court of Appeal Dec 21, 1953 No. Civ. No. 19844Published

Before: White

AI Brief

AI-generated · verify before citing

Holding. The court held that heirs do not waive their statutory right to challenge charitable bequests exceeding the limits set by Probate Code section 41 by failing to appear in probate proceedings, provided they file a timely appeal from the decree of distribution.

Issues

Whether heirs waive their rights under Probate Code section 41 by failing to appear or file objections during probate proceedings prior to the entry of a decree of distribution.
Whether a timely appeal from an erroneous decree of distribution preserves the right to challenge charitable bequests that exceed the statutory limit.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The record presents no basis for a conclusion that the appellants had waived their rights to succeed to two-thirds of the estate.”

“Respondents have cited no authority which holds that parties situated as were the appellants herein cannot preserve their rights by a timely appeal from the decree of distribution.”

122 Cal.App.2d 167 (1953) Estate of HENRIETTA MORAN, Deceased. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES, as Executor, etc., et al., Respondents,

LILLIAN WAGNER et al., Appellants.

Civ. No. 19844. California Court of Appeals. Second Dist., Div. One.

Dec. 21, 1953. Louis Thomsen for Appellants.

W. R. Hervey, Jr., for Respondents.

WHITE, P. J.

More than 30 days but less than six months prior to her death Henrietta Moran executed a holographic will whereby, after a specific bequest of jewelry to Nancy Stromstaedt, she left the "balance" of her estate to the respondents Bensenville Home Society and The Angel Guardian Catholic Orphan Society of Chicago, both charitable institutions in the State of Illinois. Pursuant to directions in the will, respondent Security-First National Bank of Los Angeles was appointed executor. The decedent was survived by two nieces, Lillian Wagner and Irma Brown, who are the appellants herein. The appellants entered no appearance or demand for notice in the probate proceedings, pursuant to section 1202 of the Probate Code, or otherwise. In due course respondent bank, as executor, filed its final account and petition for distribution, praying that the estate be distributed pursuant to the will in equal shares to the two orphanages. Appellants did not appear at the hearing of the account and petition or file objections thereto. The superior court entered its decree distributing the estate to the orphanages, and the present appeal is from that decree.

Section 41 of the Probate Code provides as follows:

"No estate, real or personal, may be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, by a testator who leaves a spouse, brother, sister, nephew, niece, descendant or ancestor surviving him, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, unless the will was duly executed at least thirty days before the death of the testator. If so executed at least thirty days before death, such devises and legacies shall be valid, but they may not collectively exceed one-third of the testator's estate as against his spouse, brother, sister, nephew, niece, descendant or ancestor, who would otherwise, as aforesaid, have taken the excess over one-third, and if they do, a pro rata deduction from such devises and legacies shall be made so as to reduce the aggregate thereof to one-third of the estate. All property bequeathed or devised

Estate of Moran

AI Brief

WHITE, P. J.

More from California Court of Appeal

Related research

AI Brief