In Re Estate of Hincheon

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 757 John Hincheon died April 1, 1909, leaving a will which was admitted to probate in the superior court of Alameda County on April 25, 1909. Letters testamentary were issued to Dudley Kinsell and Robert W. Inches, the executors named.

The will contained the following provisions: —

"First. To Mary Hurley of San Francisco, California, I give, devise and bequeath that real property owned by me, and which is situate on the north side of East 27th Street, East Oakland, Cal., and on which property is situate a cottage in course of construction.

"Second. Out of the balance of my estate I direct that all my just debts, funeral expenses, charges and expenses of last illness and of administration shall be paid; and out of such residue shall be paid the bequests hereinafter set out."

By the third, fourth, fifth, six, seventh, eighth, and ninth paragraphs the testator gave various cash legacies aggregating the sum of $2250, and also certain furniture and pictures. The tenth paragraph was as follows: "If, after the payment of the legacies and bequests within mentioned, there shall be any residue, then such residue, if any there be, I give, devise and bequeath to my two nephews, John Sharkey, Jr. and Joseph C. Sharkey, share and share alike." The will bore the date of April 1, 1909, the day of Hincheon's death. *Page 758

On April 21, 1910, the executors filed their final account with a petition for the distribution of the estate. Their account showed sufficient money on hand to pay all cash legacies and also something over five hundred dollars to each of the residuary legatees.

On the day on which the final account and petition for distribution were to come on for hearing, Mary Hurley, the devisee named in the first paragraph of the will, filed a petition "for construction of the will" and for payment to her of certain sums of money. In this petition she alleged that about a week before the death of Hincheon he had informed the petitioner that he intended to make a deed of gift to her of the lot mentioned in the will and the house thereon, and had stated that the house was practically completed; that upon the same occasion he had requested that in case of his death the petitioner would have his remains interred in a certain cemetery and provide for perpetual care thereof, and had also expressed a desire to have the remains of his deceased mother and sister interred in said cemetery, and a suitable monument erected at his grave. She further alleged that on the death of the decedent, and between the second and sixth days of April, she made the necessary arrangements for the burial of the decedent as requested by him and paid out of her own money for that purpose the sum of $257. After the burial of the decedent she learned for the first time that the house was not completed, and, upon being advised by the executors that it was necessary that she should advance money to protect the house from injury she paid out for lumber and work done on said building sums amounting to $148.32. She further alleged that one White had made a contract with the deceased to paint said house and that a balance of $155 would be due on said contract when completed; that one William R. Stultz had made a contract with the deceased for doing the plumbing work of said house and that a balance of $110 would be due on said contract when completed.