Foley v. L'Amoreaux

SHINN, P. J. The estate of Lucretia W. Foley was distributed by the court in probate pursuant to the provisions of the will of decedent. Among the assets was the sum of about $8,000 which was distributed one-half to the brother of Lucretia and members of his family1 and one-half to the living children of John L. Foley, surviving husband of Lucretia. John died seven months after the death of Lucretia and left surviving five children.2 The cash in question was the net proceeds of the sale in Lucretia’s estate of property known as 530 North Howard Street, Glendale, California. This property was disposed of by the will and the rights of the parties in the cash are the same as they would have been in the. real property had it not been sold in probate. The admin[812]istratrix of the estate of John L. Foley appeals from the order of distribution insofar as it distributes one-half of the cash to members of the Woodside family.

The will consisted of three holographic documents all of which were admitted to probate. The document dated January 29, 1950, which was the latest one, contained two [paragraphs which we shall designate as Paragraphs I and II. These read as follows:

I.

“ ‘I, Lucretia W. Foley, do hereby declare this to be my last Will and Testament. To my husband, John L. Foley I give my property at 530 North Howard St. Glendale Calif. Should he sell it at any time, one half of the net proceeds should be his and one half divided equally among any of-his living children.

II.

“ ‘In case of the death of John L. Foley and myself to- or or sickness gether, Aat the same time or as a result of an accident A the portion of John L. Foley shall be divided one half equally between his living children and one half equally between my brother, Albion B Woodside his wife Augusta Woodside their their daughter Dorothy Roberts andAson Albion Woodside Jr. ’ ”

The real property was not sold during John’s lifetime. It is the contention of the administratrix that the real property was devised in fee to John if he should survive Lucretia and that his children took the same by right of succession upon his death. It is contended further in no event could the provisions of Paragraph II become operative unless Lucretia and John died at the same time. The Woodsides contend that under a proper interpretation of Paragraphs I and II they were given one-half of the property, or one-half of whatever interest John might have retained from the proceeds of a sale, the same to go to them upon the death of John if it occurred at the same time as the death of Lucretia or afterwards. The trial court agreed with this intérpretation, and we also agree.