Louttit v. Strohmeier

McFARLAND, J.

This is an appeal by Anna Louttit from that part of the decree of distribution in this estate which distributes certain property of the deceased to other persons to the exclusion of the appellant.

, The deceased left a will in which, after certain specific legacies, she refers to the rest and residue of her property and says: “And I give and bequeath such residue and rest of my estate to my nieces and nephews... share and share alike. ’ ’ By the decree of distribution the said residue is distributed to certain persons who are the nieces and nephews, and they are the only nieces and nephew^ of the testatrix; and among them the appellant was not included. Appellant is not a niece of the testatrix; she is the daughter by a former marriage of a Mrs. Hunter, who afterwards married John Fisk, a brother of the testatrix. She was about six years old when her mother married Fisk, and lived in the- family with her mother and Fisk. Her name until she was married was Anna Hunter. Appellant’s contention is, that upon the evidence introduced in the case she should be held as within the class designated in the will as “my nieces and nephews.” It is hardly necessary in this ease to discuss the question whether the well-known meaning of “nieces and nephews”—that is, children of brothers and sisters—is not so free from either latent or patent ambiguity as to leave no form for explanatory extrinsic evidence; because the evidence introduced by appellant fails' to show that she was a niece in a secondary or remote sense of the word—even if such evidence could be supposed to be admissible. The appellant introduced two witnesses on the subject—Mrs. Strohmeier, a sister of the testatrix, and her daughter, Ethel Strohmeier. The former testified to parts of a letter—the other parts having been lost or destroyed—from a sister of the testatrix to the appellant, which is of no consequence except that it closes with the words “with love to all from your Aunt Tina”; and in answer to the question if

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appellant was taken into the family of John Fisk and treated as one of the family, the witness said: “Of course her mother took her and she lived right with her mother.

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She also said that the only nephews and nieces of the testatrix of whom she had any knowledge were those mentioned in the petition for distribution. The witness Ethel was asked what, if anything, the testatrix had said to her, after the making of the will, about the appellant. To this question respondent objected on the ground that declarations of the testatrix either before or after the making of the will were not competent evidence. The court intimated that this was the rule under .the Civil Code, and counsel for appellant said that the purpose of the proposed testimony was not to vary the will, but to get declarations as to the relationship between the testatrix and the appellant, whereupon the court said: “I will permit you to go on to that extent, if it is no declaration on her part as to what she meant by the will, as to the relationship I will admit that. ’ ’ The witness then testified by question and answer as follows: