In re Dolan

Belcher C. C. Margaret Dolan executed her last will in April, 1877, and died in December following. The will was duly admitted to probate, and in it is found the following language: —

“First—I give, devise, and bequeath to my son, Michael Dolan, in trust, for the following purposes, that certain house and lot, No. 317 Stockton Street, in the city and county of San Francisco, etc.

“ 1. I direct that my said son Michael shall, from the rents, issues, and profits of said house and lot, pay and discharge the mortgage now on the same, as soon after my death as the income will justify.

“ 2. That as soon as said mortgage shall have been paid and satisfied as aforesaid, I desire and intend that from ■the rents and profits of the said property each of my daughters, Celia Jordan, wife of John Jordan, and Margaret Platt, of Australia, British Colonies, shall receive the sum of four hundred dollars ($400).

“ 3. Also, from the same source, the sum of one Iran[67]dred dollars .($100) to Sister Frances McEnnis, for the use and benefit of the orphans under her charge.

“ 4. After the aforesaid application of the emoluments of the said property shall have been made, I direct that the whole of the income of said lot and building be given to my son James Dolan, during the term of his natural life, and after his death, the same to vest in my son Michael Dolan, in fee.”

In due time the executors of the will filed their petition for a decree of distribution of the property of the estate.

The court acted on the petition, and by its decree distributed the whole income of the house and lot mentioned to James P. Dolan, who is admitted to be the James Dolan named in the will, during the term of his natural life; and it then “ordered that a life estate in said real property vest in said James P. Dolan, and that said executors transfer the possession of said real estate forthwith to said James P. Dolan, and that he retain possession of the same, free from the control of said John F. Quale and Michael Dolan, or either, as executors or trustees, for and during the term of his natural life.”

From this decree Michael Dolan has appealed, and the only questions presented relate to that part of the decree which gives to his brother, James P., a life estate in and a right to the possession of the said property.