In re Berton's Estate

TEMPLE, C. This appeal is from an order of the probate court denying the petition of appellant, as executor of the will of the deceased, for a distribution of the estate. The petition was filed at the same time as the account for final settlement of his accounts as executor. Due notice was given, and at the time appointed the final account was approved and settled. Due proof was made of notice to creditors that the time for the presentation of claims had elapsed, and that all claims against the estate, and the expenses of administration, and all taxes levied on the estate, had been paid, and that there was left in the hands of the executor for distribution, $84,-450.94. The testatrix left two children—a son and a daughter. The record shows that the son was then, when the final account was settled, nineteen years of age and the daughter over eighteen. The will bears date April 18, 1887. The [682]executor was appointed May 3, 1888. The final settlement was November 12, 1891. It is said that distribution was refused on the ground that the will had not then been fully executed; that, according to its terms, the estate could not then be distributed. The material portion of the will reads as follows: “I desire to give to my only two beloved children, Michael Albert Tschurr, born in San Francisco, and now residing with my beloved father, Michael Corai, in Zug-Graubunden, Switzerland, and my daughter, Anna Paulina Catharina Tschurr, born and now residing in San Francisco, the summe of ten thousand dollars each, share and share alike; this is to be theyr separate part of my estate, which I give to them. I further give and bequeath the balance of my estate, of which I may die seised or possessed, or to which I shall be entitled at the time of my decease, to my beloved husband, Flavien Berton, of the city and county of San Francisco, my beloved son, Michael Albert Tschurr, and my beloved daughter, Anna Paulina Catharina Tschurr, share and share alike. Each to receive one third of my estate after my two named children will have received theyr ten thousand dollars each. . My beloved son shall receive his share of my estate at the time he attains the age of twenty-five years. It is my wish that my only daughter should not mary before she attains the age of twenty years. At that time, if she maries, she to receive all her part of my estate, this to be forever her own separate property outside of five thousand dollars, which shall be her mother’s wedding gift. Her husband never to have any right to the balance of her estate, but the interests, her estate to be and remain her own separate property, at the time of her decease to go to her children, or if there are no children, one half to be given to her husband, the other half to her brother or his heirs. Should it please God to call one of my children from this earth before they should be maried or have family, theyr share to go share and share alike to theyr stepfather or brother or sister. It is my will that my children above named, being the children of my dearly beloved husband, Christian Tschurr, deceased, be well educated, theyr education to be paid out of the interests of my estate. My son to choos the profession he wishes or has talent for. I do nominate, constitute and apoint my beloved husband, Flavien Berton, of the city and county of San