Davis v. Davis

JENNINGS, J. This is an appeal which is presented on the judgment roll from a decree entered in a proceeding to determine heirship.

The decedent died testate in San Diego County, leaving as her next of kin and heirs at law three sons and two grandchildren. The will, which is holographic in character and of which the respondent is the duly appointed and acting executor, is in the following language:

“San Diego, Sept. 14-29.

“Being of sound mind, and without any influence from any one, I declare this my last will and testament in case of my death I hereby leave all of my property to my son William Wallace Davis to be distributed to my sons & grandchildren as he deems best Said William Wallace Davis is to act as executor of my estate without bond.

“Mattie S. Davis.”

Contending that the will provides only for the appointment of an executor and makes no provision as to the persons to whom or in what shares, the estate is to be distributed, other than it shall be distributed to decedent’s heirs at law who are merely referred to in the will as “My sons & grandchildren”, the appellant, Thomas M. Davis, one of decedent’s sons, commenced this proceeding. The prayer of appellant’s petition was that an order be made determining the heirs of decedent and directing that the estate be distributed to the children and grandchildren of the deceased in accordance with the provisions of section 222 of the Probate Code.

At the time appointed for the hearing of the above-mentioned petition the matter was submitted to the trial court on the following agreed statement of facts:

‘ That Thomas M. Davis, the petitioner, is a son of Mattie S. Davis, deceased.

“That Mattie S. Davis was a woman of usual intelligence and education and had been, with such assistance as she deemed necessary, attending her own business affairs subsequent to the death of her husband in 1910 until her death.

“That the will of the said decedent be considered in evidence as in evidence upon the hearing. ’ ’

Prom this statement and particularly from the provisions of the will, the trial court concluded that the will was and is a [66]valid will and that under its terms respondent is the duly appointed and acting executor thereof and that the language of the instrument, “to be distributed to my sons & grandchildren as he deems best”, invested the executor with a power of determination as to what share of the estate he should distribute to each of the persons falling within the class to whom the testatrix directed the distribution should be made. The court accordingly decreed that the three sons and two grandchildren are included within the class of “my sons & grandchildren” mentioned in the will and that respondent as executor thereof is invested with discretionary power to determine what share shall be distributed to each of said persons.