Estate of Phillips

247 Cal.App.2d 510 (1966) Estate of CATHERINE PHILLIPS, Deceased. LEO W. LYONS, as Executor, etc., Petitioner and Respondent,

v.

THOMAS C. LYNCH, as Attorney General, Objector and Appellant.

Civ. No. 30709. California Court of Appeals. Second Dist., Div. Four.

Dec. 28, 1966. Thomas C. Lynch, Attorney General, and Carl Boronkay, Deputy Attorney General, for Objector and Appellant.

Harold L. Myers for Petitioner and Respondent.

BISHOP, J. [fn. *]

Our attention is to center on this passage in the holographic will of the testatrix which follows a number of specific bequests: "My jewelry is to be sold. I leave the balance to my brother Leo Lyons and at his death it shall go to a Tubercolosis instute [sic]. He must give an account of any big amount before his death and handle all my affairs. To [511] my dogs I will $500.00 to be cared for an an autopsy held that they died a natural death." With the words before it that we have emphasized, the probate court, in response to a petition for a decree determining interest, adjudicated that the residue of the estate was to be distributed to Leo W. Lyons "as life tenant with power to consume principal and interest and that on his death the part of the residue which has not been used was to go to a tuberculosis institute to be designated at time of distribution."

[1a] The Attorney General, mindful of his responsibility respecting public charities, [fn. 1] appealed from the Decree Determining Interest in Estate, making special reference to the portion we have just quoted, the effect of which might well be to keep a considerable portion of the "balance" from ever reaching the tuberculosis "instute." Persuaded that the powers expressly given the "life tenant" [fn. 2] by the decree were too broad, we are directing that the order be amended, and as so amended, affirmed.

[2] A hearing was held on the petition to determine heirship, but it is agreed that no evidence was received that touches on the question of interpretation with which we are concerned, so that we may approach the problem not bound by the decision of the probate court.

[1b] Those who defend the interpretation given the will by the probate court place considerable emphasis upon the words of the will "He must give an account of any big amount before his death," reading into them a recognition of a right to spend a "big amount" if he saw fit. We note, however, that those words were a part of a complete sentence, the concluding words of which were "and handle all my affairs." We interpret the sentence, as it is evident the trial court did, as an inartful way of designating the subject of the sentence as the executor. No place else in the will is an executor designated. Yet, when Leo Lyons petitioned to be named administrator with the will annexed, he was appointed executor and