Security-First National Bank v. Jephcott

SHINN, P. J. By findings made on a hearing for distribution of the estate of Rebecca Jephcott, deceased, and objections thereto, the following facts were established.

Rebecca Jephcott was the surviving wife of 'Montague F. Jephcott; all the property which was in her estate at the time of her death was acquired by her through gift, devise and bequest from the estate of her husband. Joseph, Leon, Israel and Henry Belous, are nephews of Rebecca, her next of kin and only heirs at law. Douglas S. Jephcott and Norman C. Jephcott are the children of Montague Frank Jephcott by a former wife, and are his next of kin and only heirs at law. Rebecca made a will by which .she left more than one-third of her estate to charities and she died four months and ten days thereafter. When the estate was ready for distribution the nephews filed objections, claiming the right- to receive the excess of said one-third of the estate. The stepsons, Douglas and Norman, also filed objections and sought distribution of the excess to themselves. All objections were overruled and distribution was made to the charities. Upon this appeal, Douglas and Norman are the appellants and the charities are the respondents.

[279]The foregoing facts bring in question the application of section 41 of the Probate Code. Under that section, the will having been executed at least 30 days before death, the legacies to the charities were valid and not subject to question as to one-third of the estate, but they could not exceed collectively more than one-third of the estate as against the decedent’s spouse, brother, sister, nephew, niece, descendant or ancestor, who except for the will would have taken the excess over one-third. The section reads in part as set out below.1 Although the objections of the nephews were overruled, they have not appealed and the order as to them has become final.

The claim of appellants is based upon section 229 of the Probate Code which, so far as material here, provides a rule of succession where there is no will and the estate of the decedent was the separate estate of a predeceased spouse and came to the decedent by gift, descent, device or bequest. In that event the estate goes to the heirs of the former spouse, who, in the present ease, upon the facts related, are appellants. If the property had been the community property of decedent and her former husband, and there had been no will, then, under section 228, Probate Code, appellants would have taken one-half the estate and the nephews of decedent the other half. The finding that the property came “from the estate of her previously deceased spouse, Montague F. Jephcott” means, we assume, that it was the separate estate of the former husband. It would appear, therefore, that the objections of the nephews were ineffective for any' purpose for the reason that in the absence of a will the entire estate would have gone to appellants as sole heirs of the decedent’s predeceased spouse. (See Estate of Randall, 86 Cal.App.2d 422 [194 P.2d 709].)