In re Estate of Ogier
Before: Belcher
Synopsis
Will—Selection of Attorney by Testator—Power of Executrix.—A provision in a will selecting an attorney named therein as attorney of the estate of the testator, and directing the executrix to consult and employ him in all matters pertaining to the distribution of the estate and the requirements of the will, does not constitute a selection of an attorney which is binding upon the executrix, but is simply an advisory provision which she may disregard if she chooses to do so, by the employment of other attorneys.
Id.—Construction of Will—Coexecutors.—The direction in the will to the executrix to consult and employ the attorney named therein in all matters pertaining to the distribution of the estate does not entitle the
attorney to be appointed as coexecutor with the executrix, it appearing from the whole tenor of the will that the intention of the testatrix was simply to make him the attorney and counselor of the executrix, and not to commit to him the administration of the estate.
Belcher, C. Anna Ogier died on the sixteenth day of March, 1893, in the county of Los Angeles, leaving an estate therein consisting of real and personal property of the value of more than sixty thousand dollars, [383]and also leaving a duly executed last will and testament which contained, among others, the following provisions:
“ 27. I appoint the said Mrs. J. de Barth Shorb the executrix of this my last will, and direct that she may be exempt from giving bonds as such, but charge her faithfully to see that my estate is distributed as herein directed. If she should die or be unable to act, then I appoint John M. Elliott my executor with the same conditions.
“28. I hereby select as the attorney of my estate John W. Mitchell, and direct my executrix to consult and employ him in all matters pertaining to the distribution of my estate, and the requirements of this my last will.
“ 29. If my said executrix and my said attorney deem it advantageous to my estate and those interested therein as legatees and devisees not to sell my real property, other than sufficient to pay my just debts, immediately after my demise, then I desire the sale of my property for the purpose of paying legacies, delayed to such time, not exceeding two years after my demise, as my executrix and my said attorney may mutually agree. And my said executrix is hereby authorized to sell any and all of my said real property at public or private sale and at such price and upon such terms as she and my said attorney may deem advantageous and to the best interest of my estate. And if my said executrix and my said attorney deem it advisable my executrix may sell my real property for part cash and part deferred payments, secured by mortgage on the property so sold. And in that event there shall be distributed pro rata to the devisees named herein the cash so received, and at the time it be received. Provided, however, that such sales shall be made so that my estate can be finally closed and distributed within three years after my demise, if it be possible to do so without detriment to any interest involved.”
On March 24th the said will was filed in the superior court of Los Angeles county, accompanied by a petition of Mrs. Shorb, who was named as executrix, asking that [384]
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