Higgins v. Washburn

SHAW, J.

This is an appeal from a judgment denying the petition of Jeanie-W. Higgins for distribution of the estate of Albert Henry Washburn, deceased, and from an order denying her motion for a new trial in the proceeding. The following is a statement of the material facts established by the record and the findings of the court: The deceased

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by his will bequeathed some small specific money legacies to certain persons named, and gave all the residue of his estate to Edward P. Washburn, John S. Washburn, and Jay B. Cook, in trust during the lives of his wife, Jean Bruce Wash-burn, and his daughter, Jeanie W. Higgins, to manage, control, invest, and reinvest the same, according to their own judgment, and to pay the net income thereof to his wife and daughter in equal shares during the lives of both, and thereafter to the survivor during her life, and upon the death of the survivor that the trust should cease and the property should thereupon vest in Henrietta and Charles Higgins, children of his daughter aforesaid, and in such other children as should be born to her, or such of them as were then living, share and share alike. The parties named as trustees were also made executors of the will. Cook renounced as executor, and the two Washburns were duly appointed and qualified. The estate was all community property, and his widow transferred and conveyed to the petitioner, Jeanie W. Higgins, the entire one half thereof, being the one half which, as community property, vested in said widow, and was not subject to testamentary disposition. Thereafter the widow died, and the petitioner, being thereupon entitled to the whole of the income of the residue, under the terms of the trust, relinquished and surrendered all of her rights under the trust to her said children, Henrietta and Charles. She claims that this surrender acted as a merger, and clothed the two children with the absolute present title to all of the estate that was disposed of by the will; that is to say, to the one half thereof. A final account of the executors had been settled. The decree settling the same showed that there was but $819 cash on hand, and that the bulk of the estate consisted of shares of stock in two corporations, known as the Yosemite Stage and Turnpike Company and the Wawona Hotel Company, the value not appearing, and that there was $4,000 unpaid on the legacies, $12,839.02 unpaid on the claim of E. P. Wash-burn as a creditor, and $1,713.14 unpaid on the claim of John S. Washburn as a creditor, both of which claims were due and had been regularly allowed. There were also due to them as executors their costs of administration, including commissions. These costs were not mentioned in the final account, and had not been settled or allowed, but the findings