Buhrmeister v. Buhrmeister

CHIPMAN, P. J.

Settlement of final account of executors and distribution.

The testator by article II of his will devised all his property to his six children, naming them, “in equal shares, share and share alike. ’ ’

Article III of his will is as follows: “It is my desire that my son, Walter Buhrmeister, shall have the use and occupation, rents, issues and profits of my fruit ranch of about (60) sixty acres, near Manka’s Corner, for the period of five (5) years immediately after my death, should he live so long, together with all my household and kitchen furniture and all personal property belonging to me and used in connection with said fruit ranch, at the annual rental of three hundred dollars ($300) to be paid annually at the end of each year, to his brothers and sisters, sixty dollars ($60) to each, together with all taxes of every kind which may be levied upon said property during said term; and I direct all my other children to execute to my said son Walter, immediately after my death, a lease of said premises and said personal property for the said term and upon the conditions herein expressed. ’ ’

The court distributed the estate subject to these provisions of the will. Appellants contend that the whole estate was vested in the devisees by article II of the will and that article III expressed but a mere wish or suggestion; that Walter was not bound to take under this article that there was no

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imperative obligation imposed on him, and “if he is not bound it cannot be said that the other devisees are bound to be divested of their estate for five years at the option of Walter.” (Citing

Estate of Marti,

132 Cal. 666, [61 Pac. 964, 64 Pac. 1070]

; Hess

v.

Singler,

114 Mass. 56;

Colton

v.

Colton,