In Re Estate of Hartson

SEAWELL, J.

This in an appeal from an order denying appellants’ protests to the eighteenth account of the trustee under the will of Electa B. Hartson, and from an order approving the account of said trustee. The facts giving rise to the controversy are as follows:

In the year 1902 Electa B. Hartson died testate in the city of Napa, California. Her will was duly admitted to probate and the final decree of distribution made and entered in 1903. By the decree of distribution it was directed in conformance with the provisions of the will, that certain property should be held in trust, and that the income therefrom should be paid monthly to certain named beneficiaries for and during the lifetime of.her three children or the survivor of them. So far as pertinent here the decree of distribution provided as follows:

“ . . . the income from the balance of said trust property said trustees shall pay:

“One-third (1-3) thereof to her daughter, Dasie A. Hart-son: one-third (1-3) thereof to her son, Channing K. Hart-

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son; and the remaining one-third (1-3) to her son, Burnell C. Hartson, and his daughter, Ethel Hartson, as follows: One quarter (1-4) of said one-third (1-3) to said Ethel Hartson, and the remainder to Burnell C. Hartson.

“That said trustees shall pay the income of said property as above set out, for and during the term of the natural lives of her said children, and upon the death of any one of her said children, then the amount which should have been paid to said deceased child as his or her share therein, shall be paid by the said trustees to the legal heirs of her said deceased child, if there should be any living at such time, and if not, then the share of such deceased child shall be divided between the remaining living children.”

The trustees entered into possession of the properties and for many years the monthly income was paid to the four persons above named in accordance with the above-quoted provisions of the decree. On April 30, 1928, Burnell C. Hartson, one of the children of Electa Hartson, died, leaving surviving him as his only legal heirs Elizabeth Hartson, his wife, and Ethel Hartson Turner, his daughter, being the same Ethel Hartson named and provided for in the will of Electa Hartson. After the death of Burnell the trustees paid his share of the monthly income to his wife and daughter in equal shares. On April 19, 1930, Elizabeth Hartson, wife of Burnell, died, leaving as her legal heirs, and devisees of the residue of her estate, her two sisters, appellant Margaret Halley and Catherine Tydd. The latter died in November, 1930, and Clarence Ryan, the other appellant, was duly appointed executor of her will. The sole point involved on this appeal is who is entitled to the monthly income formerly paid to Elizabeth—Ethel Hartson Turner, the sole surviving heir of Burnell, or the legal heirs of Elizabeth? The trustee filed its eighteenth report and account for the period June, 1929, to March, 1931, in which it was disclosed that after the death of Elizabeth the trustee had paid the monthly income formerly paid to Elizabeth to Ethel Hartson Turner. The two sisters of Elizabeth filed a protest on the ground that they, as the legal heirs of Elizabeth and as the residuary legatees under her will, were entitled to the income formerly paid to her. The trial court determined that upon the death of Elizabeth her share of the income was properly paid to Ethel Hartson