Conroy v. Holy Innocents Catholic Church

[370]Opinion

ALLPORT, J. Frances Marie Coburn died September 22, 1967, leaving surviving her as only heir at law her sister Marie Schmitt. Her will executed May 18, 1967, was admitted to' probate February 13, 1968, and James C. Webb was appointed executor thereof on June 3, 1968. No contest of the will was filed. By paragraph “Third” of the will, the testatrix gave all of her property to The Holy Innocents Catholic Church, appellant herein, and no provision was made for any alternative disposition. Marie Schmitt died February 7, 1970, prior to distribution under the Coburn will, leaving three adult children, Edward Schmitt, Walter Schmitt, and Helen T. Conroy, respondents herein, as her sole heirs at law.

A petition to determine interests in the Coburn estate was filed in the superior court pursuant to Probate Code section 1080 by Helen T. Conroy as executrix of the will of Marie Schmitt. A statement of interest was filed collectively by said Helen T. Conroy, Edward Schmitt and Walter Schmitt alleging them to be the sole descendants of Marie Schmitt and the sole niece and nephews of Frances Marie Coburn. It was contended in the statement that the gift to the church in the Coburn will was valid only to the extent of one-third of the estate and that the balance of the estate, under Probate Code section 41, should be distributed in equal shares to said niece and nephews, if not to the estate of Marie Schmitt. Prior to hearing of the petition to determine interests, a stipulation was entered into between appellant and respondents establishing the facts that Marie Schmitt was the only surviving heir of Frances Marie Coburn and that Helen T. Conroy, Edward Schmitt and Walter Schmitt were the only surviving heirs of Marie Schmitt. After hearing of the petition on November 16, 1970, the matter was submitted and on December 2, 1970, a minute order was made as follows:

“In the matter of the Petition of HELEN T. CONROY, as executrix, for an Order Determining Interests in Estate, of the will of Marie Schmitt, deceased, and Objections of JAMES C. WEBB, Executor of the will of Frances Marie Cobum, to any claim of Helen T. Conroy, as extx. heretofore submitted to the Court on November 16, 1970, the Court does now render its decision and order as follows:

“In the absence of any higher Court’s decision on the question here in point, this Court can only proceed by analogy to similar constructions of Probate Code § 41 by Appellate Courts. It has been heretofore decided that for purposes of application of the monetary limits of § 41, the Court should consider the amount on hand at the time of distribution rather than date of death.