In Re Estate of Kelley

RICHARDS, J.,

pro

tem.

This is an appeal from that portion of a decree of distribution which purports to distribute certain real estate in Santa Barbara to the appellant for life. The contention of the appellant is that under the will and codicils of the testator she was entitled to have the said property distributed to her in fee simple. The testator, John G. Kelley, was a resident of Pennsylvania, but maintained a home in Santa Barbara upon the property here in question and where he died on May 29, 1911. He left a will and nine codicils which were admitted to probate in Monroe County, Pennsylvania, on June 28, 1911. Ancillary administration was had in Santa Barbara County for the purpose of disposing of the property there. The decedent left surviving him

[524]

his widow, Edith S. Kelley, who was his second wife, and a daughter, whose name was Anna K. Hornbrook. He also left certain nephews and nieces who were under certain eventualities to become Ms residuary legatees. In his will, dated January 31, 1905, after certain specific bequests, he used the following words: “All the rest of my estate I give and bequeath to my dear wife, Edith S. Kelley, for life or so long as she remains my widow (except in the case of my Santa Barbara property corner Garden and Mission Street, which I give to her absolutely). ” The first, second, third, fourth, and fifth codicils to this will, executed at intervals within the period of about four years after its date, do not purport to make any change in the disposition of his property in so far as Edith S. Kelley is concerned. The codicil of June 21,1909, does, however, purport to make a number of changes in his will amounting practically to the making of a new will in which he gives all of his real estate and one-third of his personal property to his wife, Edith S. Kelley, leaving the balance of Ms personal property, aside from specific bequests, to' his daughter, Anna K. Hornbrook, or in trust for her benefit. Four days after the making of this important codicil the testator added thereto the following brief holographic codicil, viz.:

“June 25, 1909.

“It is my intention that my wife shall have all I am possessed of during her life, except in case of remarriage when I wish it placed in trust for her free from interference of anyone.’’