Strong v. Burns

Strong, as executrix of the last will and testament of Alice B. Strong, deceased, filed her second

Hattie Strong is a surviving sister of the decedent and the residuary legatee under her will. The respondents urge that Hattie Strong, as executrix, is not a proper party to appeal from the decree of distribution. (Estate of Murphy, 145 Cal. 464 , 467 [ 78 Pac. 960 ]; Estate of Babb, 200 Cal. 252 , 255 [ 252 Pac. 1039 ].)

We may assume that if, as such executrix, Hattie Strong had appealed, her appeal should be dismissed. But the notice of appeal does not necessarily preclude the propriety of considering the appeal as having been taken by her as an individual. The notice merely appends opposite her name a designation which indicates that she is the executrix, but it does not necessarily state that she prosecutes such appeal as executrix. Such designation may be considered as mere descriptio personae (Burling v. Thompkins, 77 Cal. 257 [ 19 Pac. 429 ]; Scott v. Remley, 119 Cal. App. 384 , 386 [ 6 Pac. (2d) 536 ]; 47 Cor. Jur., p. 177), and will not defeat the appeal if it may be prosecuted by the appellant in her individual capacity. The appeal may therefore be considered to have been taken by her in that capacity.

Alice B. Strong died on February 19, 1933. By her will she left the sum of $5,000 to Alice L. Lacey. In connection with the portion of the decree appealed from directing that Alice L. Lacey be reimbursed in the sum of $103.71 deducted from her cash legacy, it is pertinent to consider the provisions of clause ten of the will. By that clause the testatrix devised a certain described parcel of real property to a

The court found that at the time of her death the testatrix was the owner of eleven secured notes, having an aggregate face value of $50,662.50, and an aggregate appraised value of $44,162.50. Since the commencement of her administration as executrix of the will, Hattie Strong had caused foreclosure proceedings to be prosecuted as to all except two of said securities. Pursuant to foreclosure sales the estate became the owner of the real property which had served as the security for the payment of the notes, and such parcels were still a part of the estate at the time the decree herein was entered. The total appraised value of the two remaining secured notes did not exceed $2,100, which was also their aggregate face value. The appraised value of the real property derived from the foreclosure proceedings, plus the two remaining secured notes, after payment of all debts, funeral expenses, costs of administration, taxes and attorney’s fees, was $41,100, subject to encumbrances of $6,250 placed against two of said parcels of real property. Sufficient therefore remains after payment of debts, administration expenses and personal property bequests, without reference to the present character of the property, to pay the legacy to Georgia Lacey Burns. The court found that it was the intention of the testatrix that Georgia Lacey Burns should not be deprived of the legacy provided in clause seven of the will by reason of the foreclosure proceedings mentioned; but it was her intention, that except only as the securities may be reduced below $5,000 by the payment of debts, funeral expenses and costs of administration, Georgia Lacey Burns should receive the

The appellant objects to the portion of the decree based upon the foregoing findings and ordering distribution to Georgia Lacey Burns of the $5,000 legacy from enumerated parcels of property in the converted as well as from those in the original form. The appellant contends that the will is to be read as though it stated that if, at the time of distribution, there does not remain in the estate sufficient secured notes to be applied to the payment of the legacy to Georgia Lacey Burns, the legacy as to her is defeated. But such an interpretation of clause seven of the will is neither necessary nor permissible. The testatrix expressly made the legacy operative out of the designated properties remaining after payment of debts, funeral expenses and costs of administration, and distribution of certain personal bequests. She provided that in the event the amount of securities so remaining did not exceed $5,000, the legacy should be void. She did not say, nor can we discern from anything stated in the will that she intended the legacy to be payable from such property remaining after payment of the charges specified and any foreclosure proceedings. It is quite apparent that she intended the legacy to be effective if there was sufficient property remaining from the original source after payment of debts and the other specified charges. It is well recognized that a sale of real estate in administration proceedings will not, for purposes of distribution, effect a conversion of the proceeds therefrom into personal property. {Estate of Hills, 176 Cal. 232 [ 168 Pac. 20 ]; Estate of Gracey, 200 Cal. 482 [ 253 Pac. 921 ].) The converse of this proposition should likewise be true and make the rule applicable in the present case to prevent the foreclosures of the securities during administration from changing the form of the securities so as to defeat the obvious intent of the testatrix. It is true, as found by the court, that the foreclosure proceedings were initiated after defaults had occurred; but it was also found that not all of said foreclosures were necessary in the interest of fhe estate and that some of them were had at an actual loss to the estate. It is to be assumed also that the testatrix intended that the disposition of the securities should include the power to enforce their collection.

The decree is affirmed.

Curtis, J., Edmonds, J., Langdon, J., Waste, C. J., and Seawell, J., concurred.