MacKay v. Security-First National Bank

THOMPSON, Acting P. J. Katharine F. MacKay has appealed from a portion of the final decree of distribution [133]which was rendered in the estate of Motley H. Flint, deceased. The court found that upon the termination of the trusts which were created in favor of Katharine B. Flint, the sister-in-law, and Gertrude Cottrell Flint, the widow of the deceased, the residue thereof should be applied to the payment of general legacies bequeathed to the appellant, Katharine F. MacKay, a niece of the testator, and to several non-kindred legatees, and that if the assets of the estate were insufficient with which to pay all of said general legacies in full, then said funds should be applied pro rata to the payment of the legatees “in the proportion that each of such legacies bears to the total of such legacies”. The appellant contends that under section 1361 of the Civil Code, as it existed at the time of the death of the testator, the court should have first directed the payment in full of her legacy, before non-kindred legatees were permitted to participate therein.

Motley H. Flint died testate in Los Angeles July 14, 1930, leaving surviving him a widow, a sister-in-law and one niece. Upon application therefor, the will and three codicils thereto were admitted to probate, and the Security-First National Bank of Los Angeles was appointed and qualified as executor.

The estate was appraised at the sum of $470,365.90. There was expended for payment of debts, taxes and costs of administration the sum of $409,099.60, leaving a balance on hand of only $61,266.60, including cash in the sum of $19,-584.53. The will created a trust fund for the benefit of Katharine B. Flint, the sister-in-law of the testator, from the net income of which she was to be paid $200 each month during her lifetime. A trust fund of $50,000 was also set apart for the maintenance of Gertrude Cottrell Flint, the widow of the deceased, during her lifetime. In addition to the previously-mentioned bequests, the will provided for ten general legacies aggregating the sum of $252,500. All of these general legacies were for the benefit of non-kindred of the testator except the first two, both of which were in favor of the appellant, Katharine Flint MacKay, daughter of a deceased brother of the testator. She was given $25,000 absolutely, and a trust fund was directed to be created in her favor for the additional sum of $50,000. None of the general legacies were paid. The assets of the estate were insufficient with which to pay any of them. With re[134]