Mackay v. Mackay

Van Fleet, J. The deceased, Patrick N. Mackay, died, resident of the city and county of San Francisco, on the 21st of April, 1893, leaving a last will, wherein appellants were named as executors thereof. Subsequently said will was duly admitted to probate in the superior court of said city and county, and letters testamentary thereon were issued to appellants.

Among other things the will provided: “Third. I bequeath to my said executors in trust the sum of fifteen thousand dollars, which I direct them to invest in such security as they may deem advisable, and to pay the income thereof to Hattie Schenck, housekeeper, presently residing at Ho. 1625 Polk street, in the city and county of San Francisco, state of California, during her life.”

In August, 1894, the respondent filed a petition in the superior court, setting up in substance, among other matters not necessary to recite, the fact of decedent’s death and the admission of his will to probate, setting out the provision of the will above quoted, and stating that she was the same person referred to in said provision as Hattie Schenck; that notice to creditors had been published and that more than a year had elapsed since its first publication; and that an inventory and appraisement of the estate had been returned showing the value of said estate to be upwards of three hundred thousand dollars. She further alleged that at the time of the death of deceased, and for many years prior thereto, respondent was wholly dependent upon deceased for support and maintenance, and was entirely supported and maintained by him, and that since the death of [305]deceased she has been without means of support, but dependent upon charity; that the executors of deceased had not paid her, “ nor has she ever received any part of said legacy, or income thereof, or any interest thereon, or any thing whatsoever from the said executors or said estate in any manner.” And after alleging that the executors entertain a feeling of enmity and malice toward her, and “ that they have attempted, endeavored, acted, managed, and conducted the administration of said estate so as and with the design, purpose, and intent to keep petitioner out of and deprive her from receiving or having in any manner any part of the legacy, income, or interest” provided for in said will, and that by reason of their said feeling and conduct they are not fit or proper persons to administer said trust, she prays: “ That the said executors may be compelled to hand and pay over unto the said petitioner, Harriet Schenek Mackay, all the moneys whatsoever due in and by virtue of said legacy, together with the legal interest thereon accrued, dating from the death of said deceased up to and including the time of the granting of the relief herein demanded; also that the trust fund hereinbefore mentioned may be taken from the care, custody, control, and management of the said executors, and that a proper and fit person be appointed as trustee to receive, take, hold, invest, manage, and control said legacy for the uses provided in said last will and testament, and that this court make such order or orders and grant such other and further relief as to it may seem just and equitable.”