In Re Estate of Cross

California Supreme Court Sep 24, 1912 No. L.A. No. 3121.Published

Before: Henshaw

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Holding. The court held that the surviving spouse was entitled to letters testamentary because the condition precedent for the appointment of the alternative executors—the failure of the survivor to live for thirty days—did not occur. The codicil's appointment of executors was construed as a substitution for the original will's secondary provisions, not as a revocation of the primary provision naming the surviving spouse as executor.

Issues

Whether the provision in a joint will requiring the survivor to live for thirty days to inherit and serve as executor is void for suspending the vesting of title.
Whether a codicil naming additional executors revokes the primary appointment of the surviving spouse as executor under the original will.

Disposition. reversed

Quotations verified verbatim against the opinion

“The law itself intervenes and provides for the vesting of title.”

“Thus, Cross, Diver, and Loomis would be entitled to letters testamentary only upon the failure of the plan and scheme set forth in paragraph I of the will. This scheme has not failed.”

“The wife has survived her husband for the named period and by the terms of the will is entitled to letters.”

Synopsis

The facts are stated in the opinion of the court.

HENSHAW, J.

John Cross and Laura L. Cross, his wife, had been married for forty-five years. They were childless and owned property of considerable value. In May, 1898, they executed their joint and mutual wills. By paragraph I of those wills it was provided:

“In the event of the death of either one of the testators herein, if the survivor shall continue living for the period of thirty days thereafter, then and in that event the following terms of this instrument shall prevail, that is to say:

“1. The whole estate of the deceased testator and of the community shall pass to the surviving husband or wife; and for that purpose and in that event above described, each testator herein does hereby give, bequeath and devise to the other so surviving, all of said property and estate.

“2. That said surviving husband or wife is hereby appointed executor or executrix of this will as the will of the testator first dying as aforesaid, to.serve without bonds, such executor or executrix to have full power to sell and convey and to manage said estate and all property thereof, without any order of court thereafter.”

By paragraph II it was provided:

“In the event that the deaths of the testators herein shall occur so that the one shall not survive the other for the full period of thirty days, then and in that event, and not otherwise, the following dispositions of this will shall have force

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and effect; and then and in that event, and not otherwise, we give, bequeath, and devise the said property and estate as follows; that is to say:”

Specific legacies were then made to named legatees. It was declared that the value of their property was estimated at fifty thousand dollars; and provision was made for the ratable increase or decrease of these legacies in the event that the estate should prove to be of greater or less value than was estimated. It was further provided:

“7: In the like event first described in this division II of this will, the said Albert P. Cross and Charles R. Diver (they having formerly been named as legatees) are hereby appointed as executors of this will.”

In Re Estate of Cross

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Synopsis

HENSHAW, J.

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