In Re Estate of Shirley

SHAW, J.

This is an appeal by Lucy C. McKinney, one of the legatees mentioned in the will of Louise F. Shirley, from an order and decree of the superior court made on September 19, 1918, granting the petition of the executor to partially distribute the assets of the estate and denying the right of the appellant to participate in said distribution.

The appellant was a sister and one of the heirs at law of the testatrix. The will gave to Lucy C. McKinney a legacy of one thousand dollars, and to twelve other persons legacies in different sums varying from fifty dollars to five thousand dollars, and the residue to two young sons of George H. Van Ama.m- Following tbs residuary bequest she appointed George Puterbaugh as the executor of the will Then follows the language which is responsible for the appeal, as follows:

“Should any one to whom I have made a bequest of any portion of my Estate undertake to break my Will I desire such persons bequest becomes void and be set aside.”

[402]

The court found! that Lucy C. McKinney did undertake to break the will by contesting probate thereof; that on the trial of said contest the decision was against her, and that said will was thereupon duly admitted to probate. It- is obvious that this attempt brings her within, the terms of the clause just quoted, and that if said clause constitutes a condition to the legacy in her favor she has violated the condition and thereby forfeited her right to receive such legacy.

The appellant contends that the clause above quoted is not a dispositive provision of the will, but a mere expression of a wish or desire, addressed to no particular person and entirely ineffective to bring about a forfeiture of the legacy upon a violation of its terms. In support of this construction of the clause she relies on the decisions of this court in

Estate of Marti,

132 Cal. 666, [61 Pac. 964, 64 Pac. 1071];

Kauffman

v.

Gries,

141 Cal. 295, [74 Pac. 846];