Glendower v. Read

California Court of Appeal Apr 21, 1932 No. Docket No. 8160.Published

Before: Fricke

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Holding. The court held that a testamentary provision disposing of property "of which I may die possessed" is not a specific legacy because it includes after-acquired property and does not identify specific property existing at the time of the will's execution.

Issues

Whether a testamentary provision disposing of property "of which I may die possessed" constitutes a specific legacy under Civil Code section 1357.
Whether an appellate court can make new findings of fact under Code of Civil Procedure section 956a when the appeal is presented on the clerk's transcript alone without a transcript of the evidence.

Disposition. reversed

Quotations verified verbatim against the opinion

“for a legacy to be specific the testator must have in mind, at the time of making the testamentary disposition, a specific piece of property, then in existence, which he intends the beneficiary to receive upon his death.”

“it must be held that the provisions of the fifth paragraph of the last codicil do not constitute a specific bequest or devise.”

FRICKE, J.,

pro

tem.

While this appeal is presented without a transcript of the evidence upon which the court based the order appealed from, it appears that the deceased made a will in the year 1914; that in April, 1920, he made another will, revoking that of 1914, following this by the execution of two codicils, one in April, 1924, and one in January, 1929, about three months prior to Ms death. The will of 1920 and the two codicils were admitted to probate

[765]

as the will of the decedent. The document made bequests and devises of specifically described articles of personal property and definite sums of money, of the testator’s realty in Laguna Beach and his interest in a trust fund to various specifically named beneficiaries. The residue of the estate was left in trust, naming the beneficiaries and contingent beneficiaries thereof. The codicil of April, 1924, made no change in the will except that it devised to William J. Benners all of the testator’s real property. The codicil of 1929 revoked one of the bequests of money, devised and bequeathed certain described real and personal property to Jack H. Glendower and Alice Glcndower, devised and bequeathed certain lands and moneys in the state of Pennsylvania to Joseph Beechem and Clarence J. D. Bead, and also included the following as paragraphs numbers 5 and 11: “5. I desire that all of the California property of which I may die possessed except the property hereinabove given to Jack H. Glendower and Alice Glendower be sold by my executor as soon after my death as will in the judgment of my executor hereinafter appointed be for the best interest of my estate and all of the proceeds therefrom shall be delivered by said executor to the Fidelity-Philadelphia Trust Company, the executor under my will to be held in trust for my friend William James Benners of 4720 Chester ave., in the city of Philadelphia, Pennsylvania. I direct that said Fidelity-Philadelphia Trust Company shall invest said funds in securities in accordance with their customs in handling trust funds and deliver the income therefrom to said William James Benners quarterly, commencing on January 1st, after said fund is received until the death of said Benners, at which time said fund shall be delivered by said executor to my loving sister, Abigail Dreer Bead of 4105 Pine street, Philadelphia, Pennsylvania. And in event of her prior death, to the heirs of her body.”

Glendower v. Read

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FRICKE, J.,

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