In Re Estate of Barclay

Will—Devise ob Bequest How Created.—No particular words are essential to create a legacy or devise. The essential thing is that the intention of the testator to thereby make the gift from the property of the estate is shown. When such intention clearly appears, the courts will carry it into effect, if this can be done consistently with the rulés of law applicable.

Id.—Inferential Bequest—Advances made to Testatrix.—A provision of a will, devising the residue of the testatrix’ real estate to certain named persons “after my son . . . has been paid what he has paid for me at various times,” constitutes a legacy in favor of such son of all amounts that he at various times had paid for the testatrix, payable out of her estate before any residuary legacy or devise is distributed.

Id.—Estoppel to Claim as Legatee for Advances—Presentation of Claim Against Estate.—The presentation by the son of a claim against the estate of the testatrix for the full amount of the various payments made by him for her, its allowance by the executor and approval by the court for such portion thereof as was not barred by the statute of limitations, and his subsequent application to the court for a sale of the real property of the estate for the purpose of paying all approved claims, including his own, does not estop the son from claiming as a legatee as to such items of advances as-were barred by the statute of limitations.

Id.—Construction of Will.—The provision in the will in favor of such son was not intended to take away from his rights as a creditor for such amounts as he might lawfully claim and enforce, but to give-to him those amounts of advances which he could not otherwise claim.

Id.—Decree of Distribution—Direction for Payment of Claim.—In a proceeding under section 1664 of the Code of Civil Procedure, to determine the respective interests of the claimants under the will, the inclusion in the amount ordered distributed to the son in satisfaction of such legacy of the sum for which his claim had been allowed and approved, will be construed as practically an order for the payment of the claim.

Id.—Construction of Will and Codicil.—The dispositions made by a will are not to be disturbed by a codicil further than is necessary to give it effect. The two are to be read together so as to make-one consistent whole.

Id.—Codicil Creating Trust as to Property Absolutely Devised by Will.—Where a will made an absolute disposition of certain property to a married daughter of the testatrix, and a subsequent codicil subjected the property so given to a trust, of which the daughter was the beneficiary, so long as she remained the wife of her then husband, the two documents are to be construed together as devising the property absolutely to the daughter, subject only to the execution of the trust. Where the trust was terminated by the death of the daughter, her interest in the property passed, freed from the trust, to her heirs.