Security-First National Bank v. Wagner

WHITE, P. J. More than 30 days but less than six months prior to her death Henrietta Moran executed a holographic will whereby, after a specific bequest of jewelry to Nancy Stromstaedt, she left the “balance” of her estate to the respondents Bensenville Home Society and The Angel Guardian Catholic Orphan Society of Chicago, both charitable institutions in the State of Illinois. Pursuant to directions in the will, respondent Security-First National Bank of Los Angeles was appointed executor. The decedent was survived by two nieces, Lillian Wagner and Irma Brown, who are the appellants herein. The appellants entered no appearance or demand for notice in the probate proceedings, pursuant to section 1202 of the Probate Code, or otherwise. In due course respondent bank, as executor, filed its final account and petition for distribution, praying that the estate be distributed pursuant to the will in equal shares to the two orphanages. Appellants did not appear at the hearing of the account and petition or file objections thereto. The superior court entered its decree distributing the estate to the orphanages, and the present appeal is from that decree.

Section 41 of the Probate Code provides as follows:

“No estate, real or personal, may be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, by a testator who leaves a spouse, brother, sister, nephew, niece, descendant or ancestor surviving him, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, unless the will was duly executed at least thirty days before the death of the testator. If so executed at least thirty days before death, such devises and legacies shall be valid, but they may not collectively exceed one-third of the testator’s estate as against his spouse, brother, sister, nephew, niece, descendant or ancestor, who would otherwise, as aforesaid, have taken the excess over one-third, and if they do, a pro rata deduction from such devises and legacies shall be made so as to reduce the aggregate thereof to one-third of the estate. All property bequeathed or devised [169]contrary to the provisions of this section shall go to the spouse, brother, sister, nephew, niece, descendant or ancestor of the testator, if and to the extent that they would have taken said property as aforesaid but for such devises or legacies; otherwise the testator’s estate shall go in accordance with his will and such devises and legacies shall be unaffected.