In re Estate of Winter

Vanclief, C. The will of Daniel Winter, among other things, contained the following paragraph:

“ Thirdly. I will and bequeath to my wife, Annie Winter, all of my estate that. I die possessed of, excepting the ranch I am living on, on Union Island, San Joaquin county, California, which I will and bequeath to my wife, Annie Winter, for the remainder of her life; then it is to be sold and the proceeds to be divided between my surviving brothers and sisters.”

Four brothers and one sister survived the testator; but two of the brothers died during the life of Annie Winter, the widow of the testator, leaving next of kin, [188]respectively, their heirs at law. The other two of the brothers and one sister survived the widow of the testator, Annie Winter, who was executrix of the will. After the death of said executrix an administrator of the estate of the testator with the will annexed converted the ranch into money, and applied to the court for distribution thereof in accordance with the will; and thereupon the court decreed that all the money proceeds of the ranch be distributed equally to the sister and the two surviving brothers, allowing no part of the money to go to the heirs of either of the two deceased brothers.

The appellant, who is the assignee of the heirs of the deceased brothers, contends that two-fifths of the money should have been distributed to him as assignee of the heirs of the deceased brothers.

The solution of the question depends upon whether the survivorship mentioned in the will relates to the time of the death of the testator, or to the time when the ranch was to be sold, after the death of the widow, Annie Winter. If to the former, then each of the brothers, upon the death of the testator, took a vested interest in the bequest, which, upon his death at any time thereafter, passed to his heirs and became assignable by them. If, on the other hand, the survivorship relates to the time the land was to be sold, then only the brothers and sisters of the testator, surviving at the time the sale of the land should have been made, could take any interest whatever. In other words, if the survivor-ship relates to a point of time after the death of the life tenant, each brother took only a contingent interest in the bequest of money, dependent upon his surviving the life tenant,- which might not happen.

The question to what period survivorship is to relate must depend rather upon the apparent intention of the testator, in each case, than upon any rigid rule, or any technical words. And this intention is to be collected either from the particular disposition or the general context of the will. (Newton v. Ayscough, 19 Ves. 536; Denny v. Kettell, 135 Mass. 139.)