In Re the Estate of Carrillo

RICHARDS, J.,

pro

tem. This appeal is from a decree of. final distribution of the residue of the property belonging to this estate. The only question presented upon this appeal is as to the meaning to be given to the word “cash” as used by the testatrix in her holographic will. Eva Van Buskirk Carrillo was the widow of one J. J. Carrillo, who had died, leaving a will by the terms of which she was given a one-eighth interest for life in the residue of his estate, consisting at the time his will was made of certain lands subject to mortgage. She was also given a legacy of $5,000. During the course of probate of his estate she had applied for and received a family allowance, a considerable portion of which was-not promptly paid, nor was her legacy delivered to her up to the time of the making of her holographic' will. In the year 1918 Eva Van Buskirk Carrillo executed her holographic will wherein, with much detail, she proceeded to bequeath numerous articles of personal property, such as rings, brooches, bracelets, earrings, china, clothing, and other personal effects of which she was then possessed to her various relatives, giving to each specific articles by name. She also devised the only piece of real estate of which she was then the owner, her home, to her brother and her daughter, share and share alike. As to her said daughter, Maude M. Whitaker, the clause in her said will by which the latter was to receive certain specific articles of personalty, and was also to receive her above named interest in said real estate, contained the added words “1 third cash.” The succeeding clause in said will by which her brother James L. Orr was also given considerable personal effects, together with a one-half interest in said real estate, contained the words “1 third ■ of cash that is left after my demise.” One other clause'in said will may be noted as bearing on the question involved in this appeal. It reads as follows: “If I have the $7000 coming to me I give to Mr. Peyton H. Moore for the legal work $500.00 he is deserving of it, as I promised if he got my estate settled I would make him a present and please give this amount to him providing I have $7000.00 left.” At the time of the execution of this will the only actual

[599]

money which Mrs. Carrillo had on hand was the sum of $95 in bank. There was then due her, however, the sum of $1,450 upon account of her widow’s allowance from her husband’s estate, together with her one-eighth interest in the residue thereof, as well as her said unpaid legacy. Between the date of her said will and the date of her death in October, 1919, she effected a compromise of her claims against her said husband’s estate by which it was agreed that she should be paid the sum of $10,500 in full settlement. Of this sum she received the sum of $1,000' during her lifetime, of which sum $907.17 was on hand at the time of her death. After her death and while her estate was in course of probate her administrator with the will annexed received the additional sum of $2,500 in money and a promissory note and mortgage for the sum of $7,000 executed by the duly authorized executors- of her husband’s estate. Of the money thus received there were expended certain sums in the course of administration, so that there remained on hand in money the sum of $1,612.98 when the estate was ready for distribution. There was also on hand the aforesaid note and mortgage for the sum of $7,000. The petition for final distribution, which was filed by Maude M. Whitaker, the daughter of said decedent, set forth the foregoing two items as assets of the estate and prayed that they be distributed to her as the sole surviving heir of her mother. The court, however, disregarded this prayer and, treating these assets as “cash,” distributed the same by its decree of distribution one-third each to the persons named in said will as entitled to “1 third of cash that is left after my demise.” Prom said decree of distribution the said daughter and sole surviving heir of said decedent prosecutes this appeal.