Elmer v. Gray

Foote, C. — This is an action to construe a will. The defendants, Gray and Wilbur, were nominated in the will the executors thereof, and the guardians of the estate of the testator’s child, who was the residuary legatee. The plaintiff is the person named in the fifth clause, which is as follows: —

“ 5. I give and devise to my sister, Mary Elmer, now of San Francisco, California, the sum of forty dollars per month, from the date of my death during her natural life; and if it is necessary for her care and comfort, I will and direct that my executors pay to her, or expend for and on her behalf, such other and further sums as they, in their best judgment, may deem meet and proper; and in case of her death, to give her a decent burial.”

[284]The defendants paid this sum, together with an increase of ten dollars, until the distribution of the estate to the residuary legatee, of whose estate they are now guardians by the terms of the will. They now doubt whether they have power to increase the allowance, because the above clause of the will vests the discretion in them as “ executors,” and they are no longer executors, but are guardians. We think they have the power. The leading intention of the testator in this regard was to make a suitable provision for his sister during the rest of her life. For this purpose he gave her an allowance of forty dollars per month “ during her natural life”; and because he could not foresee what her needs might be as increasing age crept upon her, he vested a discretion in certain persons to increase the allowance, if they thought it was necessary. The word “ executors ” seems to us to have been used simply as a designation of the persons who were to exercise the discretion, and not as a limitation of the time in which it was to be exercised; and it is unimportant that the official name of these persons has been changed.

We therefore advise that the judgment be reversed, and the cause remanded for further .proceedings.

•Belcher, 0. C., and Hayne, C., concurred. The Court. — For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for further proceedings.

Hearing in Bank denied.