In re Estate of Shirley

This is an appeal by Lucy C. McKinney, one of the legatees mentioned in the will of Louise F. Shirley, from an order and decree of the superior court made on September 19, 1918, granting the petition of the executor to partially distribute the assets of the estate and denying the right of the appellant to participate in said distribution.

The appellant was a sister and one of the heirs at law of the testatrix. The will gave to Lucy C. McKinney a legacy of one thousand dollars, and to twelve other persons legacies in different sums varying from fifty dollars to five thousand dollars, and the residue to two young sons of George H. Van Ama.m- Following tbs residuary bequest she appointed George Puterbaugh as the executor of the will Then follows the language which is responsible for the appeal, as follows:

“Should any one to whom I have made a bequest of any portion of my Estate undertake to break my Will I desire such persons bequest becomes void and be set aside.”

The appellant contends that the clause above quoted is not a dispositive provision of the will, but a mere expression of a wish or desire, addressed to no particular person and entirely ineffective to bring about a forfeiture of the legacy upon a violation of its terms. In support of this construction of the clause she relies on the decisions of this court in Estate of Marti, 132 Cal. 666 , [ 61 Pac. 964 , 64 Pac. 1071 ]; Kauffman v. Gries, 141 Cal. 295 , [ 74 Pac. 846 ]; Estate of Mitchell, 160 Cal. 618 , [ 117 Pac. 774 ]; and Estate of Purcell, 167 Cal. 176 , [ 138 Pac. 704 ]. These decisions each involved the question whether or not a precatory trust was created by the terms of a will purporting to impose upon the devisee or legatee a duty to a third person with reference to the property devised or bequeathed'. They are applications of the rule of interpretation governing words addressed to the devisee or legatee concerning the property devised or bequeathed to him, as distinguished from the interpretation of general or particular expressions of the testator’s will not so addressed, or, as it is sometimes stated, “addressed to the executor. ’ ’ The distinction is thus stated in Estate of Marti, 132 Cal. 671 , [ 61 Pac. 965 ]: “While the desire of a testator for the disposition of his estate will be construed as a command!'when addressed to his executor, it will not, when addressed to his legatee, be -construed as a limitation upon the estate or interest which he has given to him in absolute terms.” Appellant seizes upon the phrase, “addressed to the executor,” in the above passage, and therefrom draws the inference that when the word “desire” is used and it is not in terms or expressly addressed to any person, it is not to be construed as indicating the intention of the testator to dispose of his estate or to effect a disposition thereof, but is a mere ineffective statement of his hope or wish. The phrase quoted was used in that case only as a convenient form of expression, and the passage is not to be taken as rigidly

Cl] The fact that the clause here involved is not formally addressed or directed to any person as one by whom the bequest should be set aside is of no importance. Where words are used which, dispose of .property or impose a condition upon a bequest given elsewhere in the will, they need not be addressed to anyone. It is enough that they show the intent and will of the testatrix regarding the property or legacy. If they do this, the court and the law will carry it out by probating the will and distributing the estate as is provided therein.

[2] The appellant also invokes the rule that a clear and distinct bequest in a will cannot be affected by any other words, not equally clear and distinct in another part of the will. (Civ. Code, sec. 1322.) The words of the qualifying clause first above quoted are not grammatical in form, but they are entirely clear and distinct as an expression of the will of the testatrix that if any legatee or devisee shall undertake to contest the will the legacy given to such person shall be thereby forfeited. The rule referred to does not apply to the case.

[3] We are of the opinion that the court below correctly construed the will and properly held that the appellant was

The order is affirmed.

Olney, J., and Lawlor, J., concurred.