Carpenter v. Lee

SHAW, J.

Two appeals are here presented. The first is an appeal from an order denying the application of Eliza E. Carpenter for letters of administration upon the estate of Eliza Davis, deceased. The other is an appeal from an order denying the petition of Eliza E. Carpenter for the removal of the respondent, Sarah Lavinia Lee, from her -office as trustee appointed by the court, under the will of Eliza Davis, deceased, and for the appointment of some other person in her stead.

Eliza Davis died testate on March 2, 1894, being then a resident of San Francisco. By her will the entire estate was devised to two trustees, namely, Joseph Donahue and Adam Grant, in trust, as follows: First, to convert the estate into money; second, to pay

debts;

third, to divide the residue of the estate into five equal parts and pay one-fifth to each of three of her children named, provided they should be discovered by the trustees within two years from the date of her death, to pay another fifth to her son Augustus Davis, and out of the remaining one-fifth to pay the respondent, Sarah Lavinia Lee, a daughter of the decedent, also known as Lavinia Lee, forty dollars per month during her natural life, and at her death the balance of said one-fifth to be paid to her children. It was further provided that if the trustees failed to discover the three first-mentioned children of the testatrix within two years from the death of the decedent, the shares given to them should be paid over to the other children, Augustus Davis and Sarah Lavinia Lee, but that the share of Sarah Lavinia Lee was “to be always subject to the above provision to pay it to her in monthly sums of forty dollars, during her life, and the remainder of her share, if any, to her said children, as aforesaid.”

The will was duly probated and Adam Grant was appointed executor thereof. He died in 1898, and C. C. Webb was then appointed administrator with the will annexed. Webb died

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in 1903 and no successor or other general administrator of the estate has ever been appointed.

The trustees were unable to discover either of the three children first mentioned. Augustus Davis died before the death of the testator, leaving no children or other living descendants, or wife, surviving. By the death of Augustus Davis without lineal descendants the disposition to him lapsed. (Civ. Code, secs. 1310, 1343.) As to that portion there was intestacy. It is not necessary to the decision of this case to determine precisely the effect of these provisions. It is sufficient to note that the children of Sarah Lavinia Lee have a vested interest in the one-fifth part out of which, according to the first provision, she was to receive forty dollars per month during her life, and that they have a vested interest in one-half of the three-fifths conditionally given to the three undiscovered children, the effect being that her half of this three-fifths would be consolidated with the fifth directly given to her, and that out of the whole thereof she was entitled to receive only forty dollars per month during her life, and that the residue and remainder of that part of the estate would go to her children at her death.