Martin v. Chandler

California Court of Appeal Feb 11, 1937 No. Civ. 10409Published

Before: Sturtevant

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Holding. The court held that paragraph 29 of the will was a payment provision for the legacy in paragraph 24 rather than a separate bequest, and that the testatrix's expression of a wish to keep the estate intact for twenty years was precatory rather than a mandatory directive to the executors.

Issues

Whether paragraph 29 of the will created a separate legacy of maintenance for the testatrix's sister in addition to the cash bequest in paragraph 24.
Whether the testatrix's statement regarding keeping the estate intact for twenty years was a mandatory instruction to the executors.
Whether the term 'dividends' in the will should be interpreted as encompassing all income of the estate.

Disposition. reversed

Quotations verified verbatim against the opinion

“Paragraph 29 is clearly but a proviso to paragraph XXIV. There is nothing whatever in the will to the contrary and such construction is consonant with every other clause contained in it.”

[217]

STURTEVANT, J.

Herminia Peralta Dargie died testate on December 8, 1929. She left an estate appraised at $1,140,000, of which the principal assets were approximately one-half of all of the issued stock in Tribune Publishing Company and Tribune Building Company. One of the residuary legatees and several of the other legatees filed petitions in the probate court under the provisions of section 1080 of the Probate Code, asking said court to determine who are entitled to distribution of - the estate. From the decree entered by that court the petitioners have appealed.

In so far as pertinent to any questions presented in this proceeding, the will provides as follows:

“Continuation of my last will and Testament.

“I. I hereby revoke any, and all wills previously made by me.

“II. I desire that my executors as soon as they have sufficient funds in their hands, pay my funeral expenses, and the expenses of my last illness.

‘‘ III. I give and devise, & bequeath to Kittie Craig Bleimhardt of Phoenix, Arizona, the daughter of my kind friends Dr. and Mrs. Robert Wallace Craig, the sum of five thousand dollars.”

(Then follow twenty cash legacies.)

“XXIV. To my sister Josefa Peralta Wilson, I give devise and bequeath, the sum of Fifty thousand dollars, to each of my nieces Francisca, Wilhermina Joan, Mary and Peralta Wilson, all children of my aforesaid sister, I give devise and bequeath five thousand dollars, apiece, not more or less.

“XXVIII. I hereby appoint as a board of Executors, to act in the discharge of the duty I hereby impose upon them Captain Antonio Rodriguez Martin, Royal Engineer Corps of Spain, Alexander Doig of Oakland, California, Jefferson Chandler of Los Angeles, California and Wm. T. Summers, San Francisco.

“29. That my executors pay to my sister Josefa Peralta Wilson not more, nor less, than one thousand dollars per month, from dividends derived from the assets of my estate.

“30. (1st) All bequests—(smaller) to be paid as soon as possible, and from the accumulations of dividends to be derived, as above—from my estate.

Martin v. Chandler

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STURTEVANT, J.

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