Kurtz v. Heyes

SHINN, Acting P. J. Frank J. Cook died testate at Los Angeles on June 29, 1941. Surviving him were Ethel G. Cook, his widow, and Loretta Cook Kurtz, his daughter by a former marriage and his only other heir at law, appellant herein. Subsequent to his death and on August 1, 1941, his widow was declared to be an incompetent person in proceedings had therefor and Irma C. Heyes was appointed guardian of her person and estate. Thereafter and on March 25, 1942, said incompetent deceased intestate at Los Angeles leaving property and estate now in the course of administration. Prank J. Cook left a brief holographic will wherein he mentioned his daughter and two brothers and a sister without naming any of them, all of whom later appeared and identified themselves as Loretta Cook Kurtz, daughter, Joseph L. Cook, Walter R. Cook and Loretta Cook McNeill, brothers and sister respectively. The present controversy arises over the construction of the will of Prank and his intent to be drawn therefrom, that is, whether he intended an outright grant of the fee of his estate to his wife Ethel, or whether he intended to grant her no more than a life estate with the remainder at her death over to his daughter and his two brothers and sister in the preportions set forth.

The will reads as follows: “All I have goes to Ethel the best wife a man could have. My passing out is no reflection on her but the result of a guilty conscience and a selfish mispent life. At her death I would like my sister and brothers asá get at least 2000.00 each of my money and the balance to go to my daughter. Frank J. Cook 6/29/41.’’

The appeal is by Loretta Cook Kurtz from the decree, which ordered the payment of legacies of $2,000 each to the sister and two brothers and distributed the remainder of the estate to appellant; also from an order for the sale of certain stocks of the estate to obtain funds for payment of the legacies.

Appellant in her opening brief states that although it would [378]appear that the construction which was given the will was favorable to her, she claims even greater rights, namely, all of her father’s estate, which she contends was his separate property and would go to her as his sole heir because his widow left surviving her neither spouse nor issue (Probate Code, sec. 229). Appellant’s right to prosecute the appeal is not challenged by respondents.

The principal question is whether it was the intention of the testator to leave his estate to his wife during her lifetime, with remainder over to his daughter, appellant, subject to the payment of legacies to his sister and brothers, or to leave it absolutely to his wife, with the expression of his desire that she make provision for his sister, his brothers and his daughter to the extent stated in the will.