Estate of Sharp

257 Cal.App.2d 851 (1968) Estate of THOMAS E. SHARP, Deceased. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST CO. OF CHICAGO, as Trustee, etc., Objector and Appellant,

v.

SAN DIEGO HOSPITAL ASSOCIATION, Claimant and Respondent.

Civ. No. 8759. California Court of Appeals. Fourth Dist., Div. One.

Jan. 16, 1968. Ferguson, Ferguson & Newburn, Carstens, Todd, Wright & Toothacre and Edward M. Wright for Objector and Appellant.

Procopio, Cory, Hargreaves & Savitch, Harry Hargreaves and C. Robertson Kirkland for Claimant and Respondent.

COUGHLIN, J.

Respondent, San Diego Hospital Association, is a legatee under a codicil to the will of Thomas E. Sharp, deceased. Appellant, Continental Illinois National Bank and Trust Co. of Chicago, as trustee, is a residuary legatee under that will.pursuant to a petition by the executor for determination of entitlement to distribution of estate the court decreed the amount of the legacy to respondent bears interest under Probate Code, section 162 from the first anniversary of the testator's death.

The legacy to respondent is provided for in that part of the codicil to the will entitled "Item Two: Changes in Bequests of money. ... Section (1)," wherein it is provided, insofar as pertinent to the issues at hand, in the event, "and ONLY in such event," certain conditions exist at the time "for" distribution the testator gives and bequeaths to respondent [853] an amount to be determined pursuant to a described formula.

"Item Two" of the codicil, in eight separately numbered additional sections, also provides for other legacies to other legatees.

Appellant is a legatee under the provisions of the will entitled "Article Twelve: Bequest of Residue or Remainder of Estate." Section (1) of Article Twelve, in substance defines the residue of the estate as that part thereof after payment of debts, expenses and administration, "death and other taxes" and "All bequests and legacies as provided for in this Will."

[1] The right to claim interest on a legacy, absent a testator's express intention, is controlled by statute. (Prob. Code, 161-163; Estate of Hill, 54 Cal.2d 39, 46 [4 Cal.Rptr. 1, 351 P.2d 33].) The statutory provisions applicable to the instant case are set forth in Probate Code, section 162 which, in pertinent part, provides "General pecuniary legacies, ... if not paid prior to the first anniversary of the testator's death, bear interest thereafter at the rate of 4 per cent per annum"; and Probate Code, section 161, defining different types of legacies, designated generally as "specific," "demonstrative," "annuity," "residuary" and "general."