Fancher v. Fancher

HENSHAW, J.

This cause was formerly heard and decided in Department. A rehearing having been granted and the cause having been heard by the court in Bank, the Department opinion is hereby reaffirmed and adopted. That opinion is as follows:—

“The complaint charged that the executors, as trustees of a fund under the will of the deceased, purposed to make an improper use of the fund, and prayed the court to restrain them from so doing and to direct the proper distribution of the moneys of the trust. The controversy grew out of the following undisputed facts: George Hicks Fancher died testate, leaving an estate of the value of about half a million dollars. Clauses 14 and 15 of his will are as follows: T set -apart from my estate for my funeral expenses and proper interment of my remains and a suitable monument to my memory twenty-five thousand dollars. It is my request to

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have my remains buried on my Bear Creek Ranch in township seven south, range fifteen east, Mount Diablo meridian.’ The body of the testator was buried upon his ranch as requested. The executors proposed to expend the sum of about $2000 in the erection of a granite monument at his tomb, and to use the remainder of the fund, about $20,000, in the construction of a building in the city of Merced, which building was to be dedicated to the purposes of a public library. Upon a tablet appropriately placed in said building was to be inscribed 'George H. Fancher Memorial Free Library.’ The trial court held that the devotion of the funds to this purpose was within the purview of the trust created by the will, and gave judgment accordingly.

“Appellant contends that the will discloses that the testator’s intent was that the monument to his memory should take the form of a memorial shaft, column or similar structure marking the grave of the deceased, and that the devotion of any of the funds to the purpose of a library building, or for the erection of any other memorial building, was a use wholly beside the testator’s intent. In this, as in all other matters pertaining to the construction of a will, the testator’s intent is to be derived from his language, and the words employed are to be given their natural significance, unless it be made to appear that they were employed with some other meaning. Looking to the terms of this will, the testator desired that his remains should be buried upon his ranch, and his request that this should be done has been complied with. He left the fund of $25,000 to be used by his executors for funeral expenses for the proper interment of his remains and for a suitable monument to his memory. There is nothing in this language to indicate that the testator used the word 'monument’ in any other than its natural and specific meaning, which is that of 'a pillar, statute, shaft or any structure placed over a tomb or at a grave.’ (Standard Dictionary.) In its applied sense, a monument being ‘a reminder’ may take any form. Napoleon’s battles are a monument to his memory. Horace by his poetry 'built himself a monument more enduring than brass,’ and Sir Christopher Wren in his oft-quoted epitaph,