McGregor v. Rosboro

SHINN, P. J. Maude Weatherby Whetmath executed a holographic will July 16, 1959; she passed away October 26, 1959. The will was admitted to probate, Paragraph 3 of the will reads: “Thirdly, I hereby will, give and bequeath to my uncle, Harry W. Ward, of 2122 First Street, Wyandotte, Michigan, all of my personal property, if he is living at the time of my death, but if he should not be living at the time of my death, then this and bequest above mentioned shall remain a part of my estate and be given as directed in Paragraph Fourth. ’ ’ Paragraph 4 reads in part: “Fourth, I hereby will, give, devise and bequeath all the rest of my estate to be divided equally among the following persons. ...” Here followed the names and addresses of 11 persons, cousins of testatrix, and then “If any one of the above mentioned legatees should not be living at the time of my death, then their gift and bequest above mentioned shall remain a part of my estate and be divided equally among remaining living legatees.” Paragraph 5 reads: “Fifth, I hereby constitute and appoint Mr. James M. Hicks and Mrs. Mable Hicks of 519 Montana Avenue, Santa Monica, California as executor and executrix of this my Last Will and Testament. ’ ’

In a hearing to determine heirship the court made findings from which it concluded that the testatrix meant by the language “all my personal property” her personal effects and furniture and furnishings and did not mean stocks, bonds, cash in bank or elsewhere, promissory notes or other personal property not included among her personal effects or furniture or furnishings. An order was entered awarding to Harry W. Ward the personal effects, furniture and furnishings and the remainder of the estate to the other legatees. P. W. Me[432]Gregor, administratrix of the estate of Ward, deceased, appeals.

The question on appeal is whether the court correctly interpreted the will as the testatrix understood it and intended it to be. As appellant properly states: “The obvious intention of the testator must prevail over the technical import of words.”

At time of death testatrix owned stocks and other securities of the appraised value of $38,690.64 and household furniture and supplies of the appraised value of $500. She owned no real estate.

It is contended by appellant that under a correct interpretation of the will Ward would receive all the estate, provided he survived testatrix, as in fact he did, and that the other legatees would receive the estate only in the event Ward predeceased testatrix. Respondents contend that under the plain provision of the will Ward was to receive only what the testatrix understood to be her “personal property,” namely, her personal effects, furniture and furnishings.