Estate of Phinney — 1 Myrick 239

Majority

p. 239

ESTATE OF ARTHUR PHINNEY.

No. 7919

May 8, 1879.

Headnote

Devise of property subject at death of testator to mortgage. The devisee entitled to have the mortgage which hears interest paid out of the moneys of the estate under Sec. 1513, 0. 0. P.

Construing section, C. C. P., 1513.

E. B. &. J. W. Mastick, for executors.

M. Lynch, for specific devisee.

Testator devised to Lottie P. Smith, his sister, a house and lot, which at the time of his death was subject to a mortgage to secure his debt. The devisee asks that the executors be required to pay the debt (which is interest bearing) out of the first moneys which may come to their hands which can be applied thereto. The creditor does not ask for present payment.

Under the authority given in Sec. 1513, C. C. P., and the estate of Woodworth, 31 Cal., 595 , the devisee is entitled to the order.

Let a decree be drawn.