Hughes v. Shriners Hospitals for Crippled Children

FILES, J. This appeal has been taken on behalf of a charitable corporation whose bequest was reduced under Probate Code, section 41,1 because the charitable bequests collectively exceeded one-third of the estate. Although the appeal is from the entire decree of distribution and order settling the executrix’ account, no questions are argued in the briefs except as to the application of section 41.

The will of the decedent was executed approximately two months before his death. He was survived by a widow and two adult children, Jessie Miller and respondent Florence Hughes. The will in its Seventh, Eighth, and Ninth paragraphs made a series of bequests of stocks and bonds to Shrin[114]ers Hospitals (appellant), to the Salvation Army, and to Angeles Mesa Presbyterian Church. The succeeding paragraphs of the will were as follows

" “Tenth: All the rest, residue and remainder of my estate I give, devise and bequeath as follows:

“(a) One-half thereof to my daughter Florence Hughes■

“(b) To the Angeles Mesa Presbyterian Church, of Los Angeles, California, a sum equal to Five Thousand Dollars ($5,000.00) plus interest thereof for six months from March 3, 1947, at the rate of 5% per annum and plus interest thereafter at the rate of 10% per annum, compounded semi-annually, to the date of my death;

“(e) The balance of said residue and remainder of my estate I give, devise and bequeath to my daughter Jessie Miller, if she survives distribution of my estate, and in the event she does not survive such distribution, I give, devise and bequeath said balance of the residue and remainder of my estate to my daughter Florence Hughes.

“Eleventh: If any person shall claim to be a child or dependent of mine, or to be entitled to remembrance in this will, and shall succeed in establishing such claim by appropriate judicial proceedings, I give and bequeath to such person the sum of One Dollar; if either or any of the persons hereinabove named shall contest this will, then, in lieu of the provision herein made for such person, I give and bequeath to such person the sum of One Dollar, and no more.”

The will was admitted to probate and Florence Hughes qualified as executrix. The widow and the two daughters of the deceased then entered into a written agreement whereby each assigned one-third of her interest in the estate (with minor exceptions) to each of the others, thereby equalizing their interests. This agreement was submitted to the probate court for an order under Probate Code, section 1020.1. The court adjudged that the agreement was valid and ordered the executrix to make distribution pursuant to its terms. Then the widow elected to take her share of the community property in lieu of the provisions made for her in the will. A settlement agreement was reached whereby it was determined that she would receive $50,000 cash in full satisfaction of her community property interest, and the court thereupon ordered this sum paid to her. During the period of administration Jessie Miller died. When the executrix petitioned for a decree of distribution she asked that the bequests to the three charities be reduced pro rata so that the aggregate would equal one-