O'Brien v. Malcomb

LENNON, J.

This is an appeal from that portion of the decree of final distribution in the

Estate of Margaret Hall

which directs that the debts and expenses of administration be paid exclusively out of certain residuary legacies which failed of disposition by reason of the death of some of the residuary legatees prior to that of the testatrix. The will of decedent, after creating a number of specific and general legacies, contains the following residuary clause: “All"the rest, residue and remainder of my estate, I give, bequeath and devise in equal shares to the following ten persons . . .’’ Three of the ten persons named predeceased the testatrix. As they were not related to the testatrix and there was no provision in the will for the disposition of their shares in

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the event of their death, the legacies lapsed and as to three-tenths of the residue deceased died intestate.

(Estate of Kunkler,

163 Cal. 797, [127 Pac. 43].) The trial court directed that the debts and expenses of administration be paid entirely out of the three lapsed legacies. Appellant is the brother of the testatrix and entitled as one of the heirs at law to participate in the lapsed three-tenths of the residue. The sole question presented on appeal is whether the debts and expenses of administration should be paid entirely out of the lapsed residue or whether the shares of the seven surviving residuary legatees should abate equally with the three lapsed shares which go to the heirs at law.

Appellant asserts that the charges against the estate must be paid from the general assets of the estate; that, it is a solecism to speak of paying debts and charges out of part of the residue because the residue cannot be ascertained until all debts and expenses of administration as well as legacies have been paid, and that, by charging the debts against the lapsed portion of the residue, the decree has, in effect, distributed to the surviving residuary legatees a substantial part of the shares which lapsed.

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The general rule is that property not disposed of by the will should be first resorted to for the payment of all demands against the estate. This is so for the reason that the law endeavors to carry out the intent of the testator as far as possible and, therefore, property not disposed of by the will should be so applied as to render it certain that the dispositions actually made by the testator will be effective.