In re Estate of Miller

By the Court, Crockett, J.: This appeal is from an order of the Probate Court, making a final distribution of the estate of Thomas Miller, deceased, who left a last will and testament, which was duly probated, and of which.the following is a copy:

“In the name of God, amen. I, Thomas Miller, of the City and County of San Francisco, State of California, being in good health of body and of sound and disposing mind and memory (praise be to God for the same), and being desirous of settling my worldly affairs while I have strength and capacity to do so, do make and publish this my last will and testament. -That is to say:

“I give, devise, and bequeath, all the estate, real and personal, or mixed, of which I may die seized or possessed, or in any way entitled;

First. To the Powell St. M. E. Sunday-school, one hundred dollars;

“ Second. One thousand for building a family vault under the superintendence of my executors;

‘ ‘ Third. One thousand dollars to be expended in educating Richard and Mary Ann Luke’s sons, viz., Eddy, Richard, and Thomas, the said sum to be truly and faithfully applied to the purpose above stated, in the best manner* that my executors can devise;

[169]“Fourth. One certain note which I hold against Cutler Eldridge Waters and E. T. Batters, for one thousand dollars, to Freddy, son of E. Dewey and Lottie J. Waters, his wife. Said Lottie J. Waters to receive the income from said note until said Freddy Waters becomes twenty years of age, or at the executors option;

“Fifth. To Honor and Maria S. Miller each two thousand dollars.

“ Sixth. To each of my executors, five hundred dollars for their trouble, and that they be not required tti give bond.

“Seventh and lastly." That my mother receive the balance of my money for her benefit so long as she lives, and for her heirs after.

“ All to be settled and divided as herein mentioned by Donald McMillan, George Miller, and Henry W. Bennett, whom I appoint my sole executors.”

The controversy hinges upon the construction to be placed upon the word “money” in the seventh clause; .and the question is whether that word, in the connection in which it is used, is to be interpreted as including the real estate of the testator. It is conceded by the appellant that the word ,“ money” in wills has been frequently construed by the Courts, both in England and America, to include the personal estate of the testator. The following authorities would seem to place this point beyond all doubt: Dawson v. Gaskoin, 2 Keen, 14; Boys v. Morgan, 3 Mylne & Craig, 661; Kendall v. Kendall, 4 Russ. 360; Chapman v. Reynolds, 20 Beav. 221; Levinson v. Lady Lennard, 34 Beav. 490; Morton v. Perry, 1 Metc. 446; Cowling v. Cowling, 26 Beav. 452; Langdale v. Whitfield, 4 Kay & J. 436; 2 Redfield on Wills, 111, 2d ed.; 2 Williams on Executors, 1,025; 2 Redfield on Wills, 437, note; Jarman on Wills, chap. 24, and cases there cited.