McGavin v. San Francisco Protestant Orphan Asylum Society

KERRIGAN, J.

This is an appeal from a judgment setting aside a decree of distribution, and from an order denying a motion for a new trial.

On March 6, 1909, Charles Louis Scrimger died leaving surviving him as his only heirs Nancy Scrimger, his mother, and Kate McGavin, his sister, the plaintiff. On February 20th of the same year—less than thirty days prior to his death —he executed his will by the terms of which he bequeathed the bulk of his estate to his executors as trustees under a trust

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created thereby. The trust thus created was to terminate upon the death of either the mother or sister, when two-thirds of the trust estate was to be distributed to the survivor of them, and the remaining third to certain charitable institutions, three of which are the appellants herein. Admittedly these charitable bequests failed by reason of the testator dying within a period of thirty days of the making of his will, but nevertheless the probate court on January 5, 1911, distributed the estate of Charles Louis Scrimger in accordance with the terms of his will including those rendered void by reason of the provisions of section 1313 of the Civil Code. From this decree no appeal was taken.

On March 20, 1912, Nancy Scrimger died. Thereafter demand was made by Kate Scrimger, the survivor under "the terms of the trust, that the whole of the estate be given to her by the trustee. This demand was refused, and this suit was brought by her praying for a decree declaring void the provision of the decree of distribution theretofore made and entered by which one-third of the estate was decreed to go to said charitable institutions, and that the trustees be declared to hold such interest in trust for plaintiff. The trustees answer admitting the allegations of the complaint, and prayed for such a decree as might be proper in the premises; but the charitable institutions "by their answer denied plaintiff’s right to any relief, and claimed ownership of said one-third of said estate. Judgment was rendered for the plaintiff by which it was declared that the decree of distribution in the estate of Charles Louis Scrimger, in so far as it purported to distribute one-third of such estate to charitable institutions, was void. From such judgment and the order denying a new trial this appeal is taken by the three institutions above named.