Estate of Ottoveggio

California Court of Appeal Feb 14, 1944 No. Civ. 12507Published

Before: Dooling

AI Brief

AI-generated · verify before citing

Holding. A devise of real property in a will does not include the personal property located therein unless the will clearly expresses such an intent, and the court properly construed the specific enumeration of personalty in one paragraph as excluding such items from a separate devise of real property.

Issues

Whether a devise of a house in a will includes the furniture and furnishings located therein by implication.
Whether the probate court erred in construing the will to exclude personal property from a devise of real property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of anything in the will showing a contrary intention, a devise of a designated house, place, or tract, does not include personal property in the house or elsewhere on the land.”

“The probate court was entitled to consider the ninth and tenth paragraphs together in order to determine the testatrix’ intent.”

DOOLING, J. pro tem.

This is an appeal by Pasquale Scelso, one of the beneficiaries of the holographic will of Vincenza Ottoveggio, deceased, from an order of the probate court construing certain provisions of the will. The will was written entirely in Italian. As translated the provisions construed in the order attacked on appeal read as follows:

“Ninth I give and leave to Mary Ottoveggio daughter of Paul Ottoveggio Five Thousand Dollars besides there is to be paid One Thousand Dollars of Insurance Twelve acres of ranch including the houses and all the furniture linen and gold and all silverware including all my clothes that is Mary Ottoveggio daughter of Paul the remainder of the ranch of twenty-two acres to be divided between Frank Ottoveggio and Michael Ottoveggio sons of Paul Ottoveggio.

“Tenth I give and leave my house of Santa Clara ten four seven together with the house of Santa Cruz one two seven Buena Vista

“All shares of Transamerica as well as Bank of America as well as shares of Blair Corporation as well as all the money is to be paid to Doctor Pasquale Scelso but with the duty of giving me honorable burial that is Doctor Pasquale Scelso.”

The house in Santa Cruz which was devised to appellant by the tenth paragraph above quoted was furnished and a dispute arose between appellant and respondent Mary Ottoveggio as to which of them was entitled to the household furniture and furnishings in the Santa Cruz house. The executor petitioned the court for instructions on this subject and the court by its order determined that the devise to appellant of the house in Santa Cruz “did not include any personal property located therein or thereon” and that the

[882]

phrase “all the furniture, linen and gold and all silverware including all my clothes” in the ninth paragraph “included and embraced all furniture, linen, gold and silverware contained in the house or on the premises known as No. 127 Buena Vista Avenue, Santa Cruz” (the house devised to appellant) .

Oral testimony was introduced that the Santa Cruz house was furnished for occupancy, that house and furniture were used by the testatrix as a unit, and that none of the furniture or furnishings thereof was ever transferred between the testatrix’ home in Santa Clara and the Santa Cruz house which she used for vacation purposes.

Estate of Ottoveggio

AI Brief

More from California Court of Appeal

Related research

AI Brief