Estate of Daly

SHENK, J.

This is an appeal from an order denying in part a petition for partial distribution.

The decedent, John D. Daly, died testate on the first day of January, 1923, at the age of eighty years. His will, of date September 8, 1912, and codicils thereto dated June 2, 1922, and November 17, 1922, were duly admitted to probate. On January 25, 1923, the son and a son-in-law of the decedent qualified as executors. The testator was survived by the son, four daughters, Sarah F. Tilton, Lillie I. George, Ida E. Levensaler, and Minnie E. Carson, and the widow, Florence Adele Daly, the appellant herein. During his lifetime the testator made deeds of gift and advancements to his five children. The second paragraph of the will devised and bequeathed to the daughters other than Minnie E. Carson all of the estate, “subject, however, to the charges against my estate and provisions for equalizing benefits received or to be received from me or my estate and provisions

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for . . . my daughter, Minnie E. Carson, hereinafter contained.”

The daughter, Minnie E. Carson, received by means of deeds and advancements less property than the other daughters. With the expressed purpose and desire to have his four daughters participate equally, it was provided in the will as follows: “And, I further will and direct that before distribution of my said estate is made and at the time thereof, so nearly as may be, there shall be ascertained the value of my said estate otherwise subject to distribution to my said daughters other than Minnie E. Carson, plus the then value of all the properties conveyed to my daughters as herein recited. . . . That said value of all said properties be divided by four and that said Minnie E. Carson be paid from my estate the difference (if there be any to her detriment) . . . ; and I hereby give, devise and bequeath unto her a sum so to be paid to her equal to said difference.” Until this division was accomplished Mrs. Carson was to receive $100 per month from the estate. At the time the original will was executed the testator was a widower. He subsequently remarried. By the codicil of June 2, 1922, he republished the original will subject to the provisions of the codicil. The second paragraph of this codicil provided for a $500 bequest to each of seven grandchildren and other relatives. In the third paragraph the testator bequeathed one-half of 15,377% shares of the Dairy Delivery Company, a corporation, then owned by him, to the appellant and the other one-half to his executors in trust for his residuary legatees and devisees' (which class included the daughters, but did not include the widow), subject to equalization according to said will. The executors as trustees were required to account to the “ultimate beneficiaries of the trust after all equalizations provided for in said will.” If the said stock was disposed of prior to the death of the testator, the widow was to receive the sum of $125 per month during her lifetime. The codicil of November 17, 1922, made additional specific bequests not material to this controversy. During the course of administration the executors received as dividends on all of the stock of the Dairy Delivery Company the sum of $66,931.14. The widow filed her petition for partial distribution, wherein she prayed that the court distribute to her the stock and the dividends