In Re Estate of Glann

WILBUR, J.

This is an appeal from a decree made October 3, 1916, determining the rights of all persons to the estate of the deceased in a proceeding under the provisions of section 1664 of the Code of Civil Procedure. The deceased died March 14, 1887. His will was thereupon probated, but, in accordance with a request expressed in the will, no proceedings were taken for distribution until after the death of his two brothers, Peter and Vincent. Then these proceedings were instituted. The lower court held that all the property should go to the respondent, Anna Glann, the surviving wife of the decedent. There also survived the decedent a daughter, Anna, an only child, the fruit of his marriage with the respondent. This daughter died May 23, 1901, when sixteen years of age, unmarried and without issue. The widow by right of inheritance from her husband, and as the heir of her daughter, would be entitled to all the property of the decedent, in the absence of any will, or to the extent that the property was undisposed of thereby. (Civ. Code, sec. 1386, subd. 1.) The appellants herein do not claim by right of

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heirship, but under the fifth provision of the will, hereinafter set forth.

Por a correct understanding of this contention it will be necessary to state some of the facts, and some of the provisions of the will. The will was executed November 23, 1886, contemporaneously with an agreement of partnership between the deceased and his two brothers, Peter and Vincent, which was referred to in the will. At the time of the execution of these instruments the decedent bad been married about two and a half years to Anna Glann. They had one child, the daughter above mentioned, then about a year and six months old. The testator was then about fifty-five and his wife about twenty years old. The partnership agreement provided that the business of the firm should be” the business of “farming, stockraising, and conducting a dairy on the land therein described”; that the cv Ttnership was to commence at once and be continued as tong as two of the partners survived; that “if either of the partners shall die the business of the firm shall be carried on by the survivors”; after the death of two of such firm “the business shall be carried on by the survivor in the same name (Glann Brothers) until his death”; that in the case of the death of either of said firm, “leaving a family, the said family shall be entitled to the share of the deceased member in the profits of said business, and'lhe survivor or survivors shall be deemed a trustee for such family and the support of such family shall come out of the deceased member’s share of the profits of said business; that if all the members of said firm or the survivor or survivors -shall determine it to be for the benefit of said business, any part of the real estate owned by the said three members, as above stated, may be sold and the proceeds invested for the firm or for the use or benefit of the survivor or survivors and the family of the deceased member or members”; that “at the death of the survivor all of the property of the said co-partnership, as well as the real estate hereinbefore mentioned shall be disposed of as provided in the several wills of the said copartners, or as directed by the laws of succession of said state, it being the purpose of the signers hereof to continue said business as long as either shall live, and that then said property shall go to the heirs, devisees and legatees of each.”