Painter v. Widow & Sons

Jerome B. Painter died on the sixth day of February, 1883, leaving a will and codicil, which were admitted to probate by the superior court of the city and county of San Francisco on the thirteenth day of April, 1883. The administration of the estate has been pending in said court ever since the last-mentioned date.

In March, 1898, J. Milton Painter, Theodore P. Painter, Adaline Mininger, Grace Mininger, J. Milton Painter, as executor of the will of Margaret Painter, deceased, Josephus Painter, by his guardian, J. Milton Painter, and Thomas B.

Jerome B. Painter’s will was executed on the eleventh day of March, 1864, while the codicil bore date March 11, 1874. The provisions- of the will, so far as material to the present controversy, are as follows:—

“1st. I give and bequeath to my brothers, J. Milton Painter and Theodore P. Painter, all my share, right, title and interest of, and in and to, the copartnership of Painter & Co., the stock thereof, its business, good will, and all interests of whatsoever nature connected with them as partners (except real estate), debts due us, and moneys out at interest, for their own use and benefit, upon the express condition that they assume all debts standing against the concern, and pay off that certain mortgage on property southwest corner of Washington and Sansome streets.

“2nd. I also give and bequeath to them, my brothers, J. M. Painter and T. P. Painter, aforesaid, that certain building and lot of land in which our business has been conducted, known as Nos. 510 and 512 Clay Street, and more particularly described as being on Clay Street, commencing on the north side 73 feet west from Sansome Street, thence west 15.9x91.8 feet deep, with the proviso, that a certain mortgage on the same property, given by me to Miss Charlotte Rhodes for five thousand dollars as part of the purchase money, bearing interest at seven per cent per annum,. will be assumed by them, both interest and principal, and paid as they may become due.

“3rd. I give and bequeath to my sons, Albert and Walter, that certain building and lot of land on Clay Street, known as Nos. 318, 320, and 322, and more particularly described as follows: [Here follows a particular description.] The property to be kept fully insured and in good repair from the moneys received from the rents thereof, and the building to be rented or let to the best advantage as well for the revenue to be derived from it, as for the future safety and well condition of the building and property. The balance of the rents, after paying the above necessary expenses, to be apportioned as follows: One sixth to be regularly sent to my mother, as her share, so long as she may live; and one sixth to my sister Adaline and brother Josephus, to be equally divided between them, so long as they may live, but should either die, then the sum apportioned to revert to my wife, as long as she remains my widow; but should she again marry, then to revert to my children, Albert and Walter. Should either of my children die, the whole of this property, and rents as apportioned, to go to the remaining one. The balance of the rents, viz.: two thirds to go to my wife, as long as she remains my widow, to be used for her support and maintenance, and that of my aforesaid children, and they to be properly educated with the best of a good English education; . . . The total rents of this property to revert to my children, as each becomes of age, namely, twenty-one years, to be used by them for their own particular benefit and free use] with my very particular injunction that they never see or know that their mother, aunts, uncles—more particularly their grand-parents, or their uncle, my brother Josephus—is in want of any of the necessaries, comforts, or even ordinary luxuries of life, without their cheerfully and cordially administering to their wants. . . .

“4th. I give and bequeath to my beloved wife, and mother of my children, all my remaining property, as per schedule annexed, or which may be remaining, not in the schedule annexed, but unbequeathed, for her sole use and benefit.

“5th. I give and bequeath the sum of one thousand dollars each to the San Francisco (Protestant) Orphan Asylum, and the Ladies’ Relief and Protection Society of San Francisco; also, one thousand dollars to my uncle, John H. Pearsol, of

Lancaster, Pennsylvania; and one thousand dollars to my niece, Grace (daughter of my sister Adaline), the latter sum to be placed out securely until she attains her lawful age (together with the interest accruing on the same) when she shall receive the said sum, principal and interest, for her sole use and benefit; but, in case of her death, the same to go to her mother, my sister Adaline. I also give and bequeath to my mother and sister Adaline, and brother Josephus, one thousand dollars each; also, one thousand dollars each to my brothers, J. Milton and Theodore.

“6th. I appoint as my executors to this my last will and testament, my wife, and my brothers J. Milton and Theodore, either or all of them to serve as they may wish, without the necessity of giving bonds or security whatever, as I have implicit faith in their integrity.”

At the time of the execution of this will the testator had only the two children, Albert and Walter, nafhed therein. During the next ten years four more sons were born to him, and on March 11, 1874, as has been stated, he executed a codicil to his will reading as follows :—

“My sons Edgar, Arthur, Oscar and Jerome, being bom to me since the making of the foregoing will, I hereby further will that they share and share alike with their brothers Albert and Walter in all properties held by me at the time of my death, and I hereby revoke the 2d clause of my will bequeathing to my brothers that property known as Nos. 510 and 512 Clay Street, between Montgomery and Sansome streets, San Francisco, and that it be placed for distribution among my sons when the youngest becomes of twenty-one years of age, like my other property mentioned herewith: All those certain parcels of land, with improvements, in south line of Washington Street, between Battery and Front streets, 20 feet x 60 feet deep, known as No. -. Also, southwest corner of Sansome and Washington streets, 45 10-12 feet x 67 feet; also, northeast corner of Powell and Filbert streets, 68 9-12 feet on Powell by 137 feet on Filbert Street; also, southeast corner of Powell and Jackson Streets, 48 feet on Jackson by 90 on Powell Street; also, lot on Broadway Street known as No. 729, 21 by 137½ feet, together with all real estate I may hereafter accumulate, as well as moneys at interest, etc., not otherwise appropriated.

“I also substitute my brother-in-law, Mr. R B. Dallam, to act in place of my brother J. Milton Painter, as administrator to my will, without his giving bonds, etc. I also revoke clause 4th of this will and direct that my wife share with my sons, and they with her in all property, she one half and they all the other one half equally among them.”

After the execution of the codicil and prior to the death of Jerome B. Painter a seventh son, Eugene, was born.

From the bill of exceptions, it appears that in a prior proceeding between the same parties the superior court made a decree (which has become final) construing this will and codicil. In any consideration that is now to be given to the terms of these instruments, the matters thus adjudicated are to be taken as conclusive, and to this extent the question before us is limited and narrowed. We shall point out hereafter the portions of that decree which have a bearing on the present controversy.

The legacies payment of which was sought by the appellants are those mentioned in paragraph 5th of the will, and the proportion of the rents bequeathed by paragraph 3d to the testator’s mother, brother, and sister. The petitioner, Cochran, claims as assignee of John H. Pearsol. It is admitted here, although it was in issue in the lower court, that at the time of the hearing there was not in the hands of the executrix and executor sufficient personal property to pay the legacies bequeathed by paragraph 5th, and the main question for determination is whether these legacies are payable out of the real estate devised by the will and codicil, and distributed by the decree of partial distribution appealed from. If the legacies given by paragraph 5th of the will are chargeable against such real estate, the order denying the application for their payment and the decree distributing such real estate to the devisees are alike erroneous. (The rent bequests of paragraph 3d stand on a different ground and will be separately discussed.)

The contention of the respondents is that the real estate was specifically devised to them by the codicil, and that therefore such real estate is not chargeable with the payment of general legacies. As to how far, if it all, specific legacies or devises can be made to pay general legacies, the provisions of the Civil Code are by no means free from doubt. Section 1357 defines

A specific legacy (or devise), then, is one of “a particular thing [or parcel of land], specified and distinguished from all others of the same bind belonging to the testator.” That the codicil undertakes to devise particular parcels of land, “distinguished from all others of the same kind belonging to the testator,” would seem to admit .of no doubt, since the various parcels devised are definitely and particularly described. If the devises covered merely the land so described, the appellants would hardly undertake to contend that such

On the other hand, a different conclusion has been reached where language was used indicating an intent to separate a specific gift from a residuary gift to the same legatee or devisee. In Clark v. Butler, 1 Meriv. 304, the testator bequeathed all his household lease in London and all his household goods and furniture at Sawbridge, “and as to all my plate, linen, china, pictures, live and dead stock and all the residue of my goods, chattels and personal estate,” to a legatee. It was held that the gift was specific as to the lease in London and the household goods and furniture at Saw-

In short, the question is purely one of construction. The testator’s intent is to be determined in each case from a consideration of the particular language employed. A bequest or devise of the residue of an estate is general, because such residue is not ascertainable at the time the will is made. The fact that, in giving such residue, the testator describes, as included in it or forming a part of it, certain specific property owned by him, does not alter the character of the residuary gift. But where the language .used indicates an intention to make two distinct gifts,—one of specific property and the other of the residue,—the specific legacy or devise is not rendered general by the fact that there is a gift of the residue to the same person. We think the language of this codicil brings it within the principle of the cases last cited. The testator indicated, as plainly as language could do it, his intention to give to his wife and his sons the particular parcels of real estate described in the codicil. That he added to this gift the words “together with all real estate I may hereafter

The court found that all the real property of which the decedent was seized or possessed, or in which he had any

It is claimed that the court erred in denying to Adaline Mininger and to Josephus Painter any right to participate in the rents derived from the building Nos. 318, 320, and 322 Clay Street. It is argued that the gift of a share of these rents, in paragraph 3 of the will, was specific, and that it had been conclusively determined by the former decree construing this will that the codicil did not revoke the specific legacies given by the will. But whether or not this gift of a portion of the rents was specific, and whether or not it was revoked, it was, by the terms of paragraph 3, merely a gift of such rents until the testator’s sons Albert and Walter should reach the age of twenty-one years. Both were over this age when the testator died, and hence this gift to Josephus Painter and to Adaline Mininger never took effect.

The appellants assign as error the ruling of the court admitting in evidence a paper dated 1863, shown to be in the .handwriting of the decedent, and purporting to contain a statement of the assets and liabilities of Painter & Co. Doubtless such paper was not competent evidence of the condition of the firm’s affairs, but it appears to have been offered merely for the purpose of showing the belief of J. B. Painter as to the status of the business. If his belief regarding his property was material,—which does not seem to be disputed by appellants,—we think his declaration, written or oral, was properly admitted as some evidence of such belief. (16 Cyc. 1183. See Kyle v. Craig, 125 Cal. 107 , [ 57 Pac. 791 ].) The ruling admitting in evidence a “Schedule of Personal Property, ’ ’ dated 1864, is attacked, but, as no exception was taken, the action of the court cannot be reviewed. Some other points are made on the admission of testimony, but none of them, even if well taken, is of sufficient importance to justify a reversal.

«The orders appealed from are affirmed.