Herbert v. Motion Picture Relief Fund, Inc.

WHITE, P. J. This is an appeal from a judgment of the Superior Court of Los Angeles County upon a petition [667]filed by appellant to determine the persons to whom distribution should be made. The case comes to us upon an agreed statement of facts which reflects that on February 27, 1950, testator made a will bequeathing $10,000 in cash to one Rose Epstein Herbert, and the remainder of his estate to respondent Motion Picture Relief Fund, Inc., a charitable corporation.

On February 18, 1952, testator executed a codicil bequeathing the contents of a safe deposit box to one Tom Flynn. At the time of decedent’s demise, the value of the estate was in the sum of $163,242.31, and included in said value was the contents of the safe deposit box in the sum of $8,500 in cash, which is 10 per cent of the entire net distributable estate.

Less than 30 days after executing the said codicil, and on March 12, 1952, testator died. Thereafter, on April 25, 1952, the court below made its order admitting the will and said codicil to probate “as the Last Will and Testament of said Deceased. ’ ’

The testator left as his heirs at law and next of kin the appellant, Edward F. Herbert, who is a brother of decedent, and Grace Van Sehyndel, who is a niece of the decedent, neither of whom were mentioned or specifically referred to in the above-mentioned will or codicil.

Judgment was rendered that respondent Motion Picture Relief Fund, Inc., is entitled to distribution of the full balance of the net distributable estate, pursuant to the foregoing will and codicil, and that appellant Edward F. Herbert and Grace Van Sehyndel are entitled to no distributive share in said estate. This appeal is from the judgment.

Appellant’s contention on appeal is thus stated by him:

“It is the position of the Appellant that the Codicil of February 18, 1952, republished the Will of February 27, 1950; that the legal effect of such republication is that the Will and the Codicil are to be regarded as a single instrument executed as of the date of the Codicil; that the testamentary disposition to the charity, having thus been made within 30 days of the Testator’s death, falls within the restrictions of Section 41 of the Probate Code with the result that the charity is not entitled to distribution but, rather, that distribution of the residual estate must be made to the heirs at law and next of kin pursuant to Section 225 of the Probate Code.”