Martin v. Bank of America National Trust & Savings Ass'n

PETERS, P. J. The appellant, the niece of decedent, and the person who would succeed to testatrix’ estate had she died intestate, appeals from that portion of the decree of distribution holding that the residue of the estate should be distributed to the Reverend Thomas Byrne. The sole question presented on this appeal relates to the proper interpretation of that portion of the will disposing of the residuary estate.

The witnessed will, drafted by an attorney, was executed June 15, 1935. The decedent died November 27, 1943, as the result of an automobile accident. She left no spouse or children. By her will she provided that if a designated half sister should survive her, the entire estate should be held in trust for that half sister to pay a certain sum to her for life; that upon the death of the half sister the trust should terminate and certain specific legacies should be paid; that the residue and remainder of the estate should then be paid to the Reverend Thomas Byrne. The will provided: “It is my desire that said property so devised and bequeathed to said Reverend Thomas Byrne shall be disposed of by him in accordance with my wishes heretofore expressed to him, although by expressing this desire it is not my intention to create any trust covering any of said property.” It was then provided that if the half sister should predecease the testatrix, which she did, that “I hereby devise and bequeath my estate as follows: ’ ’ Here follows a list of specific legacies, and then: ‘ ‘ To said Reverend Thomas Byrne the whole of the remainder and residue of my estate, to be disposed of by him in accordance with my said wishes heretofore expressed to him. It is not my desire to create a trust in Father Byrne.”

It is this last quoted clause that is involved on this appeal. The trial court ruled that by this clause the residue of the estate should be distributed to Father Byrne, and it is from that ruling that this appeal is taken.

The evidence shows, without conflict, that the will was executed just before the testatrix left for an extended trip, and that neither before nor after the execution of the will, did she express to Father Byrne her desires as to the disposition of the residue of her estate. Appellant contends that the bequest to Father Byrne failed, as a matter of law, because, so it is asserted, the will shows that he was not to take absolutely, but only to take so that the property could be “disposed” of by him in accordance with the wishes of decedent. It is claimed that, because the wishes of decedent [510]