De Moulin v. Richards

WOOD (Parker), J.

Appeal from an order settling final account and for distribution, wherein it was ordered, among other things, that the residue of the estate be distributed to Mary E. De Moulin, the surviving spouse of the testator. The appellants, who are the daughter and son of the testator by a former marriage, contend that the testator did not dispose of the residue by his will, and that it should have been distributed under the laws of succession—one-third each to the daughter, son, and surviving spouse.

Horace Louis De Moulin died on November 1,1948. He left a last will which was as follows:

“November 21,1945

To Whom It Mat Concern :

“I, Horace Louis DeMoulin, of the city of Los Angeles, State of California, being of sound and disposing mind and

[222]

memory, do hereby make and declare this to be my Last Will and Testament, and hereby revoke all Wills made by me heretofore.

First, I direct that all debts and funeral expenses be paid by the executrix, hereinafter named, as soon as conveniently may be after my decease.

Second, I hereby bequeath my daughter, Constance De Moulin Richards, the sum of One Hundred Dollars ($100.00).

Third, I hereby bequeath my son, Horace Edmond DeMoulin Junior, the sum of One Hundred Dollars ($100.00).

Fourth, all the rest, residue and remainder of my estate, both personal and real and all factory stock owned by me in the DeMoulin Brothers Factory, located in Greenville, Illonois.

Fifth, I hereby nominate and appoint my wife, Mary E. DeMoulin to be the executrix of this, my Will, and I direct that she be permitted to qualify as such without the giving of a Bond or other security.

Horace Louis De Moulin

Witnesses

Eve Martin

Herbert E. Martin

In her petition for distribution, the executrix of the will, Mary E. De Moulin, alleged that on November 21, 1945, the decedent dictated his last will to Eve Martin for typing; that he so dictated paragraph “Fourth” thereof in the following words: “Fourth, all the rest, residue and remainder of my estate, both personal and real and all factory stock owned by me in the DeMoulin Brothers Factory, located in Greenville, Illinois, I bequeath to my wife, Mary E. DeMoulin.”; that through inadvertence, oversight, and mistake Eve Martin in typing said paragraph from her notes as so dictated failed to type therein the words “I bequeath to my wife, Mary E. De Moulin.” She alleged further therein that it was decedent’s intent and last will that the residue of his estate should be distributed to his wife, Mary E. De Moulin, and in fact said residue was bequeathed to her by said paragraph “Fourth” of his will.