In Re Estate of Ayers

SLOSS, J.

David Ayers died on the thirtieth day of June, 1912, survived by a daughter, Anna Mary Ross, and three sons, Charles Ayers, G. Lemuel Ayers, and Clarence L. Ayers. On July 30, 1912, a paper was admitted to probate as the last will of said decedent. Charles Ayers and G. Lemuel Ayers were named in the will as executors, and letters testamentary were issued to them. By the will the testator gave certain cash legacies to five grandchildren, and to Anna Mary Ross and Clarence L. Ayers. He also devised certain real property to two of his sons. In addition, he devised to Charles Ayers and G. Lemuel Ayers his “ranch on the Santa Rosa and Sebastopol road, Charles taking the east half thereof and G. Lemuel taking the west half thereof,” the testator’s intention, as expressed in the will, being to divide the ranch equally as to acreage, without regard to improvements. All

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the livestock, vehicles, and harness on the ranch, as well as any money or other personal property remaining after satisfying other legacies, was bequeathed in equal shares to the said four children of the testator.

On July 29, 1912, Anna Mary Ross, Charles Ayers, G. Lemuel Ayers, and Clarence L. Ayers entered into an agreement for the division of the estate. By this instrument it was provided that twenty acres of the ranch above mentioned should be set off to Anna Mary Ross, and that the residue of money and personal property, over and above the legacies, shoidd be divided equally among the three sons, no part thereof to go to Anna Mary Ross. The agreement described the twenty acres which were to go to Anna Mary Ross, and two parcels of about forty acres each (comprising the rest of the ranch), which were to go to Charles and G. Lemuel, respectively. The twenty acre piece was at the easterly end of the ranch.

In October, 1913, G. Lemuel Ayers, one of the executors, filed his petition for distribution, setting up the making of this agreement, and asking that the estate be distributed in accordance with its provisions, in so far as they conflicted with the terms of the will. Charles Ayers filed a petition asking that the estate be distributed in accordance with the will. Anna Mary Ross filed an answer to the latter petition, setting up the making of the agreement. Charles Ayers then filed an answer to the petition of G. Lemuel Ayers and to the answer of Anna Mary Ross. In this pleading he made allegations designed to show that his consent to the agreement entered 'into by the four children of David Ayers had been obtained by means of menace exercised by Anna Mary Ross, and that he had rescinded the agreement.