Estate of Dolsen

SHINN, P. J.

Luella J. Dolsen died in 1940, survived by three sons, Fred, Ray and Frank. She left a will by which she devised the home in which she had resided for many years to the three sons and appointed Ray Dolsen executor. Other property, if any, was given to the sons in equal shares. Frank died after the death of his mother. He left a will naming his wife, Pearl A. Dolsen as executrix. Some seven years after the death of Luella, Ray filed his first account current as executor and Pearl, as executrix, filed exceptions. Ray also filed a petition to determine heirship. The two matters were heard together. The court surcharged Ray’s account in the amount of $2,173.07 as rent for the occupation of a portion of the dwelling house after the death of his mother. It was also determined that the three sons took the home place under the will in equal shares and as tenants in common. Ray Dolsen appeals from both orders.

The entire controversy turns upon the construction to be given to the provisions of the will with respect to the real property. Ray contends that the three brothers were devised a life estate with remainder to the survivors or survivor, and that upon the death of Frank his interest passed to Ray and Fred. Pearl contends that the estate of Frank owns a one-third interest in the real estate.

The provisions of the will to be considered are the following:

“Second:

I declare that the Court Street property of which I am possessed is my separate property, and I hereby devise this property to my sons, Fred, Ray and Frank Dolsen, share and share alike. If any of them shall predecease me, I devise such share or shares equally to my remaining son or sons....

“Fourth:

In the event of the decease of one or two of my sons, the survivor or survivors shall receive the share or shares of such decedents in the remainder or equal portions, as the case may be....

“Sixth:

I here remember my grandson, Richard Danner, but do not feel that I can make any gift or bequest to him. To other persons who would be entitled to share in my estate through intestate succession, I hereby leave the sum of one dollar to each such claimant.” By the eighth paragraph the residuary estate was left to the three sons in equal shares.

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