Tremper v. Burres

DRAPEAU, J. pro tem. The decedent left a will entirely written, dated and signed by her which is as follows:

“I, Beulah A. Carroll, being of sound and disposing mind, hereby make this my last will and testament as follows:

“I designate John H. Mathews, attorney of 814 Fidelity Building, Los Angeles, California, as my executor and direct that he be required to furnish bond.

“All the rest residue and remainder of my estate of every kind and nature and wherever situated and after the payment of all just claims and bills, I leave as follows:

“Five hundred dollars to Esther Conkle Jones of 10500 Riverside Drive, North Hollywood, California.

“My blue white solitaire diamond ring to my niece, Alvina Rodgers of R. D. 5, Box 142, Stockton, California.

“All other jewelry to go to my sister, Mrs. Pearl Louise Tremper, living at 1721 Stanford Avenue, Stockton, California.

“The remainder of my estate is to be left equally between my niece, Carole Tremper, residing at 1721 Stanford Avenue, Stockton, California, and to the sons of Walton T. Burres of 826 East Fourth Street, Stockton, California, the same to be held in trust by Walton T. Burres until the said sons shall have reached the age of twenty-one (each child to receive [800]his share when he reaches twenty-one years) and to be used during the period of the trust for their education.

“In the event that any of the above bequests lapse by reason of the death of the named devisee, the bequest that otherwise would have gone to the deceased devisee, had he or she lived, shall go in equal shares to the remaining devisees.

“Written and signed at Beverly Hills, California, all in my own handwriting, this twenty-second day of July, 1942.”

“Beulah A. Carroll.”

The three persons, the niece and the two boys, mentioned in the remainder clause are all of tender years.

The sole question in this case has to do with the determination of the shares to go to these three children. Was it the intention of the testatrix that the residue of her estate should go one-third each to her niece and to the two sons of Walton T. Burres, or was it her intention that the residue should go one-half to the niece and the other one-half to the two boys? The probate court held that the residue should be distributed in equal thirds to the three persons designated in the will. Prom this portion of the decree of distribution the niece has appealed.