Edwards v. Brisacher

CRAIL, P. J.

This is an appeal from an order of partial distribution. The controversy arises out of a dispute as to whether the distributees (respondents) are entitled to the portion distributed to them under certain clauses of the decedent’s will, or whether they have by reason of certain facts hereinafter set forth forfeited all their interest in the estate except the sum of ten dollars each under another clause of the will.

The decedent distributed her property by will. In the eighth clause of the will she gave a “diamond wedding ring” to Harry Brisacher, and later in the same article she provided that “any jewelry not specifically mentioned or bequeathed herein shall go absolutely to my daughter, May”. Thereafter she distributed the balance of her estate in four equal parts to her children, and still later she provided a contest clause to the effect that if any of her children “in anywise, directly or indirectly, contest or aid in contesting the same, or any of the provisions thereof or the distribution of my estate thereunder, then, and in that event, I annul any bequest made herein ’ ’ and limit said child to ten dollars. Thereafter, May petitioned the court for partial distribution of one single diamond ring appraised at one hundred dollars. On the day set for the hearing of this petition, Harry Brisacher and Leo Brisacher, purporting to act as executors, filed what they entitled “Executors Objections to Petition for Partial Distribution” in which they alleged “That petitioner is not en

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titled to distribution of an item of jewelry specifically described as one single diamond ring herein appraised at $100.00, but that the same is specifically bequeathed to Harry Brisacher. ’ ’ On the same day a hearing was had on the petition before Honorable J. W. Mullin, Jr., judge

pro tempore.

In behalf of their objection respondents produced witnesses and offered to prove that the testatrix had referred many times to the single diamond ring as her wedding ring. An objection to such evidence was made and sustained. While the above proceedings were pending the respondents herein filed a petition for partial distribution including “a diamond wedding ring appraised at $100.00”. To this petition for partial distribution appellant filed an answer denying that said ring was the ring referred to in the will, and alleging that the phrase in the will