Pardini v. Giannini

KNIGHT, J. This is an appeal.from an order settling the final account of the executor of the will of Lorenzo De Santi, deceased, and involves the validity of that portion of the order directing the debts of the decedent and expenses of administration to be paid from the property specifically devised and bequeathed to persons not related by blood to the decedent, and that no part thereof be paid from the property [717]disposed of to blood relatives by the residuary clause of the will.

The will was holographic, and written in Italian. Translated, the pertinent parts thereof are as follows: “Article 2nd I give to Livio and Carolina Pardini my four lots No. 2, 3, 4 and 5 with my house and furniture which will be found on said lots in Block 5332. Article 3rd I give to Rinaldo and Emilia Bianchi my nephew and niece, my four lots No. 15, 16, 17 and 18 in Block 5332 all of which said lots will be found in my name on the register of the assessor of San Francisco, California. Article 4th All of the rest of my property I give in equal parts to my heirs according to the laws of succession of the State of California.” Livio and Carolina Pardini, the appellants herein, and Rinaldo Bianchi are not related by blood to the decedent. The latter is the husband of Emilia Bianchi, the decedent’s niece. The heirs of the decedent were his three daughters, namely Erminia Giorgi, Ida Lombardi, and Jennie Pellinacei, to whom the residue of the estate was bequeathed. The estate was appraised at $21,-193.76; the specific devise to appellants, consisting of decedent’s home and furniture, was valued at $3,050; the specific devise to Rinaldo Bianchi was valued at $300, and to Emilia Bianchi, $300. Hence a residue of $17,543.76 remained in the estate prior to the payment of debts and expenses of administration ; and the debts and expenses of administration amounted to $2,463.61. The probate court’s order was: “. . . that the sum of $2,463.61, the total disbursements and expenses in said estate, as set forth in said account, be and the same is hereby made charge above against the bequests and legacies of those devisees and legatees not related by blood to said decedent, namely: LIVIO PARDINI, CAROLINA PARDINI and RINALDO BIANCHI, and that no part of said sum be chargeable against the bequests and legacies to EMILIA BIANCHI, ERMINIA GIORGI, IDA LOMBARDI and/or EGIZIA PELLINACCI, also known as JENNIE PELLINACCI, the kindred of said decedent.” The foregoing order is not sustainable.

Section750 of the Probate Code provides: “If the testator makes provision by his will, or designates the estate to be appropriated, for the payment of his debts, the expenses of administration, or family allowance, they must be paid according to such provision or out of the estate thus appropriated, so far as the same is sufficient. If insufficient, that