Kitchen v. Ballard

LENNON, J.

This is an appeal from the order of the superior court in and for the county of Los Angeles declaring a legacy given in the last will and testament of Josephine G. Kitchen, deceased, to her niece by marriage, Lulu Ruble, appellant herein, forfeited, and decreeing that such legacy be included in the residuum of the estate devised to Mary A. Ballard, residuary legatee, and respondent herein.

The will of Josephine G. Kitchen, deceased, provided for the payment of various legacies to friends and relatives and different charitable organizations, aggregating about $86,000, and devised and bequeathed the “rest, residue and remainder” of her estate, which estate amounted in all to about $128,000, to Mary A. Ballard, sister of the deceased.

The portions of the will directly involved in the controversy here are as follows:

“I direct that my funeral charges, the expenses of my last illness, the cost of burial lot and suitable monument, the expense of administering my estate and all my just debts be paid.”

“I give, devise and bequeath to Josephine Ruble and Grace Ruble, nieces by marriage the sum of One Thousand Dollars ($1,000.00) each; and to Lulu Ruble, niece by marriage the sum of Two Thousand Dollars ($2,000.00) and, as a special token of my appreciation of her faithfulness and of my love, my earring with the diamond setting therein, it being one of the pair of my set of diamond earrings, the other having been reset in a pin, also my set of white and gold china table-ware, and cut glass vase with mirror base and silver border; also the complete set of American Encyclopedias, with the annuals, together with the complete set of Shakespeare’s works in separate volumes. ...”

[387]

“I give, devise and bequeath to my beloved sister, Mary A. Ballard, all the rest, residue and remainder of my property real, personal and mixed of every kind and nature whatsoever and wheresoever located.”

“In ease any person or persons to whom any legacy or benefit out of, from or by reason of this my will, shall commence any suit in any court whatsoever, or 'by any ways or means, sue and disturb, or cause to be sued and disturbed, my executor herein named, or any other person or persons whatsoever, to whom anything is by me given in this my will, from the recovering, quiet enjoying and possessing, of what is by me herein given as aforesaid, and in such manner as is therein mentioned, then my will and meaning is, that all and every the legacy and legacies, herein by me given to any such person or persons whatsoever who shall so sue and disturb as aforesaid shall cease, determine and be utterly void. And that then and from thenceforth I do give and bequeath all and every the legacies which I had in this my will given to such person or persons unto my beloved sister, Mary A. Ballard, as a part of the residue and remainder of my estate.”