Dempster v. Rawnsley

VALLÉE, J.

Appeal by James Rawnsley from a decree determining the persons to whom distribution of an estate shall be made.

Ann Seddon Rawnsley died testate. She left surviving, as her only heirs, James Rawnsley, her husband, and Ann Seddon Dempster and Ena Solly, daughters. In her will she bequeathed and devised her entire estate to James Rawnsley for life, remainder to Ena Solly. She omitted to provide in the will for her daughter, Ann Seddon Dempster, and it does not appear from the will that such omission was intentional. Ann Seddon Dempster petitioned the probate court to determine to whom distribution of the estate should be made, alleging that she was a pretermitted heir and entitled to distribution of one-third of the estate. James Rawnsley and Ena Solly filed an opposition to the granting of the petition, admitting that Ann Seddon Dempster was an heir and alleging that on various occasions at or about the time of the execution of the will decedent stated in the presence of witnesses that she had made various advancements to Ann Seddon Dempster in substantial amounts from time to time and that she had adequately provided for her.

[386]

On the hearing of the petition, appellant stated that the only issue before the court was whether Ann Seddon Dempster should be charged with certain advances. He offered to prove by parol evidence that decedent had made advancements to Ann Seddon Dempster. The court held such evidence inadmissible and sustained objections thereto. No other proof was offered or received. The decree adjudged that Ann Seddon Dempster “is entitled to receive and have distributed to her, and there is vested in her,” one-third of the estate free of any life or other interest of James Rawnsley therein; and that James Rawnsley is entitled to a life interest in the remaining two-thirds, and Ena Solly is entitled to the remainder of said two-thirds interest on the death of James Rawnsley.

Appellant claims that the court erred in rejecting the offered evidence. He concedes that Ann Seddon Dempster is a pretermitted heir and that she is entitled to share in the estate. (Prob. Code, §§ 90, 221.) He claims that all advancements must be deducted from her statutory share, which is one-third.

An advancement is, strictly, an irrevocable gift

in praesenti