Long Beach Day Nursery v. Security First National Bank

SMITH, J. pro tem.* This is an appeal from an order inr structing personal representatives with respect to distribution of the estate. The trial judge held that the appellants, Long Beach Day Nursery, Adelaide Tiehenor Home for Crippled [692]Children, and First Congregational Church of Long Beach, hereinafter referred to as the Three Charities, were residuary legatees and the respondents, Robert L. Taft and Stella E. Taft, hereinafter referred to as the Tafts, were given a specific bequest. Based on that holding the trial court instructed the executor to charge both taxes and expenses of administration to the gift to the Three Charities. Taxes were chargeable to the residue because of an express provision in a codicil, and expenses were so chargeable because of section 750, Probate Code.

The sole issue on appeal, as stated by respondents is: “Was the trial court correct in ruling that the bequest to The Tafts is a specific one while the gift to the Three Charities is a residuary one?” (Italics are those of respondents.)

The parties agree that since there was no extrinsic evidence, the intent of the testatrix is one of law for us to determine from the will and codicils. There are three testamentary instruments for us to construe. First—The will of 1927 provides in pertinent part:

1) It gave personal belongings and household effects to one brother and two sisters.

2) It gave the “residue” in trust to the same brother and sisters for life and thereafter to the Three Charities.

3) Among miscellaneous other provisions, respondents also rely upon a provision which would leave only one dollar to any person who would “defeat or change any part of the testamentary plan of this Will. ...” (Italics added by respondents.)

All agree that under the original will the gift to the Three Charities is residuary.

Second—The 1932 codicil provides in pertinent part:

“First: I direct that every gift, devise, bequest and interest given under my said Last- Will, or any codicil thereto, shall be delivered free from all estate and inheritance taxes, and that such taxes be paid, first, out of any property undisposed of by this Will; or, second, out of the residue of my estate. ’ ’

There is still no disagreement in interpretation. All agree that the Three Charities up to this point were residuary. Between this date and the date of the next codicil, the brother and two sisters died. This made the testamentary