In re Estate of Pearsons

Fitzgerald, J. This proceeding was brought by the executor of the last will and testament of Hiram Arthur Pear-sons, deceased, to obtain a construction of the second and third clauses of that instrument.

The will is olographic, and was dated at San Francisco, August 9, 1882. The testator died at Chicago, Illinois, July 7, 1889, at the age of twenty-eight years. He was the only child of Hiram Pearsons and Aim Charity Pearsons, who died prior to the execution of his will. He had no profession, was never married, and left surviving him uncles and aunts parties to this proceeding, but not named in the will, who claim as next of kin and heirs-at-law that part of his estate, as to which it is alleged he died intestate, by reason of the devise to charity exceeding the statutory limit.

t The clauses referred to are as follows:—

“2. I do give, devise, and bequeath unto Betsey Frances Mathewson and Polly Barton, my aunts, all real property which I hold jointly with them; and I direct that in the event of the death of either Betsey Frances Mathewson or Polly Barton prior to that of my own, all property of whatever nature herein bequeathed to them shall revert and vest in the survivor, her heirs and assigns forever; and furthermore, in the event of the death of both Betsey Frances Mathewson and Polly Barton prior to my decease, the aforesaid property otherwise bequeathed to them shall be sold at public auction, to the highest cash bidder, the proceeds of said sale to be equally dis-

[32]tribute! among the different orphan asylums of the city and county of San Francisco; and said asylums I request to be designated by the judge of the probate court.

“3. I do give, devise, and bequeath unto Isabella Eogers Kinsey, wife of my former guardian, her heirs and assigns forever, all that property which is owned by me, bounded on the south by Clay Street; on the west by Drumm Street; on the north by Merchant Street; and on the east by East Street, excepting therefrom that portion thereof which I hold jointly with Betsey Frances Mathewson and Polly Barton, and which has hereinbefore been bequeathed to them.”

It appears that the property thus devised had a frontage of 178 9-12 feet on Clay Street, running through the block with a uniform depth of 115 feet to Merchant Street, and was originally owned by Hiram Pearsons, the father of the testator, who in his lifetime granted by deed absolute to his son the westerly 68 9-12 feet of the 178 9-12 feet of the property in question. The remaining 110 feet thereof, including other property, he devised by will to his wife Ann Charity and his said son Hiram in equal undivided halves “share and share alike,” and upon his death the title thereto was accordingly vested in them. Afterwards Ann Charity Pearsons died, leaving a last will and testament, by the first clause of which she devised to her son, Hiram Arthur Pearsons, “all the real and personal property which I own jointly with him”; and in a subsequent clause of her will she devises and bequeaths to her sisters, Betsey Frances Mathewson and Polly Barton, for their use during the term of their natural lives, certain real and personal property, and also “ the income from all property which I own jointly with my son Hiram Arthur Pearsons” (which description includes the 110 feet in question) .... “and in case my son Hiram Arthur Pearsons shall die before the said Polly Barton and Betsey Frances Mathewson, or either of them, the above-mentioned property shall go to them or the survivor of them absolutely, share and share alike, to them or her heirs and assigns forever.” The undivided one-half interest in the said 110 feet lot owned by Ann Charity Pearsons at the time of her death was after-wards distributed in accordance with these provisions of her will to her son Hiram Arthur Pearsons, “subject only to the