Homeopathic Foundation of California v. Sullivan

TYLER, P. J. The question involved on this appeal is whether or not, under the will of the decedent, sums provided therein for the support of certain beneficiaries are chargeable against the corpus of the trust estate, the income therefrom being insufficient for thé purpose.

Decedent died February 12, 1930, leaving a will dated December 4, 1929, and'a codicil thereto dated January 31, 1930. The will and codicil were admitted to probate and John A. Sullivan, Carlo Serbolisca and George E. Lask were appointed executors thereof. By her will decedent bequeathed general legacies aggregating $15,500 to certain [573]associations and employees. The residue and remainder of her estate was devised and bequeathed to trustees in trust for certain purposes. This original provision was revised under the codicil referred to. By the terms of the codicil decedent devised and bequeathed the residue to the persons named as her executors and to the Bank of California in trust as follows: To receive the interest and income therefrom and to pay the same: (1) To Carlo Serbolisca, $1,000 per month during his natural life. (2) To Virginia Weill, $100 per month during her natural life. (3) The balance of the net income to be paid annually in reduction of a mortgage held by the Hibernia Savings and Loan Society on certain real property. (4) Upon payment of said mortgage the balance of the net income to be paid various institutions annually in specific proportions. The codicil further provided that upon the death of said Carlo Serbolisca and Virginia Weill the trust was to cease and the corpus of the estate was to be distributed to certain institutions in specified proportions. The codicil also contained a direction to the executors to pay to Carlo Serbolisca $1,000 per month and to Virginia Weill $100 “during the probate of my estate, which allowances are for their maintenance and support”. The will provided that certain real property, which constituted the bulk of the estate, might be sold and the net proceeds invested in United States government bonds so that the income would always be paid monthly to Serbolisca and Virginia Weill. Nothing was done by the executors under their authority to sell. The value of the property decreased steadily from the date of the death of the testatrix; rents declined, vacancies increased and the income diminished to the extent that it was no more than sufficient to pay taxes and the interest on the mortgage. The monthly payments to the annuitants could not be paid out of the income and Virginia Weill filed a petition for an order requiring the executors to pay the delinquent installments out of the corpus of the estate. The probate court granted the petition and made an order requiring the executors to make application to the bank for an increased loan not exceeding $10,000 for the purpose of securing funds to pay the annuities and other obligations of the estate. The amount of the mortgage held by the bank was the sum of $90,000. The bank refused to grant the increased loan, and