Estate of Owens

DOOLING, J. pro tem.

This appeal is taken from an order of the probate court construing certain provisions of the holographic will of Mabel Maud Owens, deceased. The will in its entirety is copied herein:

June 10-39

My last will.

What money I have at my death, after my debts are paid one-third to Elizabeth Lyons for her wonder help in time of need, her choise of my two rings, choise of paintings Hazel Neal one third of money left & what clothing she wants One hundred dollars to Lou Farnsworth—choise of china & glass ware & painting Lyons does not want

silverware

One hundred dollars to Jean Merguire and anything else she wants.

Geneve Brown 100 & anything else she wants

Signed Mabel Maud Owens

June 10 1939”

[774]

The portion of the order appealed from reads as follows:

“Out of the actual money, as distinguished from property or assets of any other kind or character, included in the estate of the testatrix at the time of her death, including all moneys on deposit in banks, the said Elizabeth Lyons and Hazel Kirke Neal, and each of them shall receive one-third (%) of said moneys left by said testatrix, after debts of testatrix are paid.”

Hazel Kirke Neal is a niece of the testatrix. Appellants are the sons of testatrix’ predeceased husband and take the undisposed residue of her estate under Probate Code, sections 228 and 229.

The order appealed from is attacked on two grounds:

1. That the trial court erred in not construing the words of the will “after my debts are paid” to include the payment of funeral expenses and expenses of administration; and 2. That the trial court erred in determining that Hazel Kirke Neal was entitled under the will to receive the same amount as Elizabeth Lyons, appellants claiming that she was entitled to take only one-third of the money remaining after the payment of Elizabeth Lyons’ bequest.