Cebrian v. De Laveaga

HARRISON, J. The will of the above-named decedent, bearing date February 1, 1886, and five codicils thereto executed by him at various dates thereafter—the last bearing date April 12, 1894—were admitted to probate in the superior court for the city and county of San Francisco, and letters testamentary issued to the executors named therein. In the original will the testator made certain pecuniary bequests, and by codicils thereafter made, the payment of all his money bequests was charged exclusively upon a certain rancho in San Benito county. One of these money bequests was a legacy of twenty thousand dollars given to William Brodersen, who died in the lifetime of the testator, and in his last codicil the testator made the following provision: “The amount I did bequest to my friend W. Brodersen, now deceased, I now desire, or rather ordain, be given to the young man, J. M. Laveaga, to whom I left my ranch in this state of Sinaloa, called Labor, but do so now no more, and I do [653]bequest said ranch to my cousin, Braulio Laveaga of San Dimas, Mexico.” The legatee thus named is the respondent herein, and was formerly known by the name of J. H. Dohrmann, and in the original will the testator gave to him, “if he takes the name of Laveaga, my ranch in Mexico, Sinaloa, called La Labor, and all my rights and interest to lands adjoining, during his life, in trust only for his first male issue born in lawful wedlock, and, if none, then,” etc. The money bequests made by the testator in his original will amounted to about two hundred and thirty thousand" dollars, and the sale of the rancho out of whose proceeds their payment was to be made yielded to the estate only about ninety-eight thousand dollars. The respondent made application to the superior court for an order directing the exeeu-, tors to pay him the sum of twenty thousand dollars as the amount of said legacy, to which opposition was made by the executors, and also by certain heirs at law of the testator, the appellants herein, upon the ground that, as the property which the testator has exclusively charged with the payment of his money bequests was insufficient therefor, the applicant was entitled to only his proportion of that fund. The court, however, held that the legacy was a charge against the general assets of the estate, and made its order directing -the payment to him <of the sum of twenty thousand dollars. From this order the present appeal has been taken by the aforesaid heirs at law.

The real issue between the parties upon this appeal is, whether the legacy to the respondent is an independent bequest, or whether it is merely a substitute for the legacy previously given to Brodersen.