Collins v. Maloney

KNIGHT, J.

The decedent, Sarah Maloney, a resident of San Francisco for many years, died at the age of seventy-six. She had never been married and her only relatives lived in Kentucky. There are five of them, namely, Thomas, Peter and John Maloney, Catherine Honadel, and Sarah Collins. The latter is a cousin, and the other four are the children of a predeceased brother. Six months before the decedent died she made a holographic will whereby she left $500 tó each of the children of her predeceased brother, $1,000 to Sarah Collins, $500 to her church, and concluded the will as follows: “I wish for Mrs. Sarah Collins to doe wat she know I like done if any is left. ’ ’ In due course the will was admitted to probate; but on proceedings for distribution the probate court decreed that as to the residue of the estate, the decedent died intestate; and thereupon, pursuant to the laws of succession, it distributed the residue, amounting to approximately $5,500, in equal shares to the four children of the deceased brother, as the next of kin. From that portion of the decree of distribution Sarah Collins appealed.

It appears to be well settled that where one attempts to create a testamentary trust, but fails to indicate either the object or the persons intended to.be benefited thereby, the purported trust is fatally defective for uncertainty

(Estate of Ralston,

1 Cal. (2d) 724 [37 Pac. (2d) 76, 96 A. L. R. 953]), and in those circumstances the property attempted to be disposed of thereby, in the absence of a valid residuary clause in the will, goes not to the purported trustee, but passes under the laws of succession in equal shares to the next of kin.

(Estate of Ralston, supra; Wittfield

v.

Forster,

124 Cal. 418 [57 Pac. 219];

Fay

v.

Howe,

136 Cal. 599 [69 Pac. 423];

Simpson

v.

Simpson,

80 Cal. 237 [22 Pac. 167];

Estate of Reith,

144