Franck v. Spencer

WASTE, J.

This is an appeal from an order of partial distribution. Ella Hubbard Franck died testate on the 20th of February, 1917, being at the time of her death a resident of Reno, Nevada. She left an estate in California, a considerable portion of which was in the city of Richmond, and her will was duly admitted to probate in the superior court in and for Contra Costa county. Letters testamentary were issued to the appellant, who was named in the will as executor and also as the residuary legatee and devisee.

The portions of the will germane to this appeal are as follows:

“Fifthly: I give and bequeath to Mary Ray Spencer, aged about thirteen years, now an inmate of Notre Dame Academy, Alameda, California, all the net profits or net income that may be derived from those certain premises situate, lying and being in the City of Richmond, State of California, and particularly described upon that certain map entitled ‘Nicholl Macdonald Avenue Civic Center, Richmond California, ’ said bequest being controlled by the following

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conditions, to wit: That my executor hereinafter named keep an accurate account of the net profits or net income from said above described premises, and from the moneys so derived pay for the care, custody and proper education of the said Mary Ray Spencer until she shall have reached the age of twenty years, and when she shall have reached the said age of twenty years then whatever of said moneys there may be remaining in the hands of said executor shall be paid and turned over to the said Mary Ray Spencer. I further direct that when the said Mary Ray Spencer shall have reached the age of thirty-five years the said above described real property is hereby bequeathed to her as her property.

“Fourteenthly: I give and bequeath to the aforesaid Mary Ray Spencer all my cut glassware, china dishes, crockery and jewelry.

“Fifteenthly: I give and devise all the rest, residue and remainder of any real or personal property, of every name, nature and kind whatsoever owned by me, at the time of my death, to my most trusted friend Al. J. Franck, of the city of Reno, County of "Washoe, State of Nevada.”

Mary Ray Spencer, through her guardian, applied to the court for distribution to her of the property to which she was entitled under the will. Appellant, as executor, filed an objection to the petition. At the hearing it was established by competent evidence that the real property devised by the fifth paragraph of the will to Mary Ray Spencer was improved; that the building erected thereon was known as the “Raymond Apartments” and that said apartments were “rented furnished, and that the furniture, fixtures and other personal property situated therein had at all times been used as a part of the apartments.” By its decree the court ordered distributed to Mary Ray Spencer all the net profits or net income that might be derived from “those certain premises situate in the city of Richmond,” the description being the same as in the will, and, “also all the personal property, furnishings and fixtures contained in or about the building situated thereon and which building is known as ‘Raymond Apartments.’ ” It was further ordered that possession of the personal property and the residue from the rents and income due therefrom be given to appellant until Mary Ray Spencer shall attain the age of twenty