In Re the Estate of Stoddart

SLOSS, J.

A paper purporting to be the will of Eliza J. Stoddart, deceased, was admitted to probate in the superior court of Los Angeles County on January 25, 1914. The decedent was a widow and left surviving, as her sole heirs, a son, four unmarried daughters,.and two married daughters.

The son and the two married daughters filed a petition for revocation of the probate of the will. Demurrer to this petition was. sustained, and the contestants filed an amended petition. The second pleading was also demurred to, and the demurrer sustained, whereupon the petitioners filed a second amended petition. A demurrer was again interposed, and was sustained without leave to the petitioners to amend. Thereupon the court entered judgment dismissing the contest. Prom this judgment the petitioners appeal.

The question for decision is whether the second amended petition states facts sufficient to constitute a cause of contest. At the time of her death Eliza J. Stoddart had been a widow for about forty years. She left an estate valued, according to the petition for probate, at about one hundred and sixty thousand dollars, and derived from the estate of her deceased husband, David Stoddart. In 1905 Mrs. Stoddart had made a will in which, after appointing as executrices her daughters, Mary Euretta and Evelyn Louise Stoddart, and bequeathing to them the sum of ten thousand dollars for purposes not specified in the will, she gave the residue of her estate to her seven children, or the survivors of them, in equal shares. This document provided that in no case should any portion of her estate “be used in the business ventures

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of my daughters’ husbands or son’s wife, but shall remain the

separate property

of the child to whom given.” The will now in controversy was made at Oakland on the seventh day of January, 1910. It gave to the four unmarried daughters, Mary E., Florence E., Evelyn L., and Bessie D. Stoddart, the residence occupied by the decedent with her said daughters, and certain personal effects; to each of the married daughters, Grace Shattuclc and Emily Newton, the sum of five thousand dollars; to the son, Augustus W. Stoddart, the sum of one thousand dollars, and all sums theretofore advanced to him; to Evelyn L. and Mary E. Stoddart, the sum of ten thousand dollars in trust to pay the income thereof to Augustus W. Stoddart during his life, the principal, upon his death, to vest in the six daughters, or the survivors of them. The residue of the estate was given to such of the daughters as should survive the testatrix, in equal shares, provided that, if the married daughters, or either of them, should survive the testatrix, and not then be widows, their shares were to be held in trust, the income to be paid to said married daughters during their lives, or until widowhood. In the event that either married daughter should become a widow, the trust fund should at once vest in her. If she should die, leaving her husband surviving, her share should vest in the unmarried daughters, or the survivors of them, in equal shares; unless the unmarried daughters should all predecease their sisters, in which event the trust funds should vest in the married daughters. Mary E. and Evelyn L. Stoddart were named executrices of the will, with power in a majority of the daughters to select successors to them.