In Re Estate of Cowell

[365]

LORI GAN, J.

This is an appeal from an order made in the above estate granting the application of Prank Tralago for a partial distribution.

The will of said E. W. Cowell, deceased, among other provisions, contained the following:

“Fifth. To all employees of the Henry Cowell Lime and Cement Company now working for said firm at Santa Cruz and who have been in said employ for twenty years, the sum of one thousand dollars each, and to all who have worked over ten years, the sum of five hundred dollars each. . . . In all cases these dates are as of January 1st, 1911.”

Frank Tralago filed a petition in said estate for partial distribution to him of one thousand dollars under the above provision of the will of deceased, alleging that he was an employee of the said company and worked for it at Santa Cruz for more than twenty years prior to the first day of 'January, 1911, and was so employed upon said first day of January, 1911. The court found that the petitioner was an employee and worked for the company at Santa Cruz for more than ten years prior to the first day of January, 1911, and was so employed on the first day of January, 1911, and ordered a distribution to him of five hundred dollars as coming within the clause of said will relating to ten year employees.

There is no question but that Frank Tralago had worked for the company at Santa Cruz for more than ten years prior to January 1, 1911, and up to that date.

The point made on this appeal is that he was not in the employment of or working for the said company on January 1, 1911. There were but three witnesses who testified on the hearing and their condensed testimony as contained in the record is not as clear and definite upon matters which were involved in and being considered on the hearing as it might have been made. The petitioner, an unmarried man, testified that he had started to work for the company in 1884, quitting work for it, as he stated, “at the end of December last year.” As the hearing in this matter was held in 1913 this reference of the witness to “December last year” meant December, 1912. Continuing he testified that he worked for the company all the time from 1884 until last year (1912) with the exception of a few years; that he was working up to the first day of January, 1911, and was working