Brown v. Rainville

WHITE, J. This is an appeal from an order denying a petition for partial distribution. The decedent, Henry H. Cline, died testate on the 17th day of June, 1937. His will dated December 11, 1936, was duly admitted to probate. The third paragraph of said will reads as follows:

“I hereby give and bequeath to Madylon M. Brown of Los Angeles, Calif, the sum of Three Thousand ($3,000.00) Dollars, inherited by me from the estate of my father, Samuel Newton Cline, and I direct that this sum be paid before any other bequest hereinafter made. ’ ’

By her petition for partial distribution filed herein, appellant alleged that decedent’s estate is of the total value of $31,615; that there is sufficient cash on hand in said estate, to wit the sum of $5,330 or thereabouts, to pay all legatees under the terms of said will; that over four years have elapsed since the issuance of letters testamentary and more than six months since the first publication of notice to creditors; that no unpaid claims of creditors remain; that the cash on hand is sufficient to pay, over and above any specific bequests, all expenses of administration; that there are no inheritance taxes due the State of California; and that all personal property and other taxes due from said estate have been paid.

The answer to the petition expressly admits that the administratrix of the estate has on hand a sum in excess of $5,000, and that the will contains the foregoing provision for the $3,000 legacy to appellant. It is further averred by the answer that one of the assets of the estate is a note for $24,000, the makers of which have been adjudged bankrupt, by reason of which fact the amount of money which the estate will receive in payment of said note is uncertain, and therefore, the estate cannot be closed.

Finally, the answer alleges that the decedent herein, Henry H. Cline, never received from the estate of his father the sum of $3,000, or any other sum, and that there did not come into the hands of the testator in his lifetime, or into the hands of the administratrix of his estate, subsequent to his death, the sum of $3,000, or any part thereof. That therefore the legacy to appellant herein is adeemed.

[802]Upon the evidence introduced, the trial court found that the value of the estate of decedent’s father, Samuel Newton Cline, deceased, was approximately $4,000, and that said estate was distributed to the four children of said Samuel Newton Cline; that'the decedent, Henry H. Cline, did not receive out of the estate of his father the sum of $3,000 as specified in the third paragraph of the last will and testament of said decedent. The court then found further that the aforesaid third paragraph of the last will and testament of Henry H. Cline, deceased, “was adeemed by reason of the fact that the said Herman H. Cline, deceased, did not, during his lifetime, nor did his estate, subsequent to his death, receive out of or from the estate of his father, .Samuel Newton Cline, deceased, the sum of Three Thousand Dollars ($3,000.00).”