Estate of McGirl

CONREY, P. J.

Upon the twenty-ninth day of September, 1930, Thomas McG-irl, a resident of the county of Los Angeles, died, leaving an estate, the larger part of which was located in Montana and a small part at Long ■Beach, in Los Angeles County, California. The will of decedent, together with two codicils, was duly admitted

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to probate, and on November 30, 1930, letters testamentary were issued to the executor, P. M. Barbe, who proceeded with the administration of the estate.

In the first codicil to the will the testator made provision for the benefit of one Leora Branch as follows: “As Mrs. Leora Branch has been a good help in taking care of me, I thereby give, devise and bequeath to my niece, Nellie II. Barbe, IN TRUST, the sum of Five Thousand Dollars ($5,000.00), the interest upon said sum to be paid to the said Leora Branch in equal monthly installments of Twenty-five Dollars ($25.00) per month during the natural life of said Mrs. Leora Branch, provided the said Mrs. Leora Branch remains with me to the time of my death, and at her death, then said principal sum of Five Thousand Dollars ($5,000.00) to become the property of my said niece, Nellie H. Barbe, to be hers absolutely and forever.

“In the event Mrs. Leora Branch does not remain with me until my death, then in that event, I hereby give, devise and bequeath the said sum of Five Thousand Dollars ($5,000.00) to my niece, Nellie H. Barbe, to be hers absolutely and forever. ’ ’

On March 3, 1931, Mrs. Branch filed in the matter of said estate a petition based upon said provisions of the codicil, and asking for the payment to petitioner of the sum of $25 per month. An order to show cause was issued, notice given, and answer filed by the executor, and the issues presented were tried by the court. Thereafter the court made an order wherein it was recited that by virtue of the terms of said codicil the decedent intended to and did create a maintenance trust for the petitioner Leora Branch, payable as of and from the date of the death of Thomas McGirl; and Mrs. Branch did remain with the decedent as intended by the provisions of said codicil, and was actually being supported by him at the time of his death. Thereupon it was ordered that the executor make distribution to Nellie H. Barbe, in trust, during the lifetime of Leora Branch, with directions to said trustee to pay the sum of $25 a month from and after the death of Thomas McGirl to Leora Branch. Provision was made for the filing of bonds, apparently to. conform with the provisions of sections 1658 to 1662 of the Code of Civil Procedure. The executor has appealed from-the judgment.