Moore v. Trinity Methodist Church

CONLEY, J* The former opinion herein was set aside and the cause resubmitted to permit a clarification of directions for distribution in the estate of Alexander Henderson Moore in accordance with the law as applied to our interpretation of the will of the decedent. Accordingly, we adopt as part of the present opinion the following quoted portion of our former opinion herein:

“All of the parties interested in the above estate have appealed from the decree of the probate court determining heir-ship. The necessary prerequisite to the determination of what parties are entitled to take under the will consists of a construction of the holographic will itself, which reads as follows :

“Last Will of Alexander H. Moore

“ ‘Los Angeles, California July 27, 1959.

“ ‘I hereby give unto my brother Alfred Finley Moore the sum of One Dollar and unto his wife Chella D. Moore the sum of One Dollar. They are my only heirs.

“ ‘ I hereby grant and give to the Trinity Methodist Church at Twelfth and Flower Streets, Los Angeles the balance of my estate to be used in its missionary work, with the exception of one hundred dollars per month, to be paid to Renee Dellavoix as long as she lives.

“ ‘Signed

‘ ‘ ‘ Alexander H. Moore. ’

“Alexander Henderson Moore died on October 27, 1959, [740]and his only brother and only legal heir, Alfred Finley Moore, was appointed administrator with the will annexed on February 23, 1961.

“The foregoing will was dated more than 30 days, but less than six months, before his death, and the appeal involves, among other things, the application of the provisions of section 41 of the Probate Code, which reads as follows:

“ ‘No estate, real or personal, may be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, by a testator who leaves a spouse, brother, sister, nephew, niece, descendant or ancestor surviving him, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, unless the will was duly executed at least 30 days before the death of the testator. If so executed at least 30 days before death, such devises and legacies shall be valid, but they may not collectively exceed one-third of the testator’s estate as against his spouse, brother, sister, nephew, niece, descendant or ancestor, who would otherwise, as aforesaid, have taken the excess over one-third, . . .’