Estate of Langdon

GAROUTTE, J.

The deceased, Hora Langdon, died testate, leaving a will which contained, among other provisions, the following: “Eighth. All the rest and residue of my estate I give, devise, and bequeath unto my nephews, Callaghan Byrne, J ames W. Byrne, and Fred Byrne, in equal portions.” In due course of administration J. W. Byrne and Callaghan Byrne, two of the aforesaid nephews, filed a petition for distribution, setting forth a copy of the will, and alleging that the estate was ripe for distribution. This petition further alleged that Fred Byrne, the third of the aforesaid nephews, died prior to the death of the testatrix, leaving no lineal descendants, and that said Fred Byrne and petitioners were the only children of Margaret Irvine, a sister of the testatrix. The following important allegation then follows: “That the intention of the said testatrix in the eighth subdivision of said will was to devise and bequeath

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the residue of her estate to the said Callaghan Byrne, James W. Byrne, and Fred Byrne as a class—namely, as the children «of her said sister, Margaret Irvine, and to those of said class only who should be living at the death of said testatrix; and upon the death of said Fred Byrne during the life of said testatrix, your petitioners became and are the sole survivors of ■said class, and are entitled to the whole of said residue.” An answer, was filed to this petition for distribution by various parties interested as heirs of said testatrix, and by this answer it was denied “that the intention of said testatrix in the eighth subdivision of her will was to devise and bequeath the residue of her estate to said Callaghan Byrne, J. W. Byrne, and Fred Byrne as a class, or as children of her said sister Margaret Irvine, or to those of said class only who should be living at the •death of said testatrix.” Upon the hearing of the petition the court made findings of fact, and by these findings declared the said allegations of the petition to be true, and ordered the residue of the estate to be distributed to Callaghan Byrne and J. W. Byrne, share and share alike. This appeal is prosecuted by some of the heirs from that decree.

It was alleged in the petition that the intention of the testatrix by her will was to devise and bequeath the residue of her estate to these aforesaid nephews as a class. This allegation was denied, and the finding of the court was in favor of the •allegation of the petition. If the intention of the testatrix in this regard is to be determined from the provisions of the will alone, then the issue between the parties was one of law, but if •the intention of the testatrix as to whether or not she purposed to give the residue of her estate to these nephews as a class was a. question of fact, then the petition for distribution and the answer squarely presented an issue of fact upon which a finding was proper and necessary. Section 1318 of the Civil Code declares: “In case of uncertainty arising upon the face of a will as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive •of his oral declarations.”