Opinion
Department One
Appeal from an order of the Superior Court of the City and County of San Francisco, granting a partial distribution of an estate.
COUNSEL:
Horace W. Philbrook, for Appellant.
A. H. Loughborough, for Respondent.
JUDGES: Paterson, J. Garoutte, J., and McFarland, J., concurred.
OPINION
PATERSON, Judge
This is an appeal by the administrator with the will annexed from an order of partial distribution requiring the appellant to pay to Sallie Levenstone the sum of $ 3,000.
By the terms of the will of the decedent, his interest in the copartnership of Newman and Levinson was given to Benjamin Newman, one of his copartners, in trust, to retain one half of the annual profits for his services during the life of the testator's mother, and out of the other half of the profits to pay her $ 200 per month, and the surplus of the profits, if there should be any, to be left in the business of the firm as a portion of his share of the capital. The testator directed that upon the death of his mother there should be paid to Sallie Levenstone $ 3,000 out of the copartnership interest, and that the remainder should be paid over to his sisters, Julia and Ada. Newman [33 P. 727] renounced the trust on July 10, 1890. The inventory filed July 16, 1890, shows that the estate consisted of wearing apparel of the decedent, gold watch and chain, diamond ring, and the interest of the testator in the partnership of Newman and Levinson. It was shown that the surviving partners refused to allow the capital of the testator to remain in the firm.
On September 18, 1891, Fannie (the mother), Julia and Ada Levinson applied for an order of partial distribution to them upon the stipulation made between themselves. This stipulation recited the fact that the provision of the will was based upon an expectation that the interest of the testator in the firm would continue, and that the profits coming to the estate from his interest in the firm would be sufficient to pay the annuity given to his mother, but that such expectation had not been realized. The petitioners had, therefore, agreed that the estate might be distributed as follows: 1. To Sallie Levenstone $ 3,000 and the diamond ring; 2. The residue of the estate to Fannie, Julia, and Ada Levinson in equal shares. The court found that the facts stated in the petition were true. It further found that after reserving sufficient money to pay Sallie Levenstone, and the executor's commissions, and a sum sufficient to cover all future expenses, there remained in the hands of the executor $ 9,000 which could be distributed without injury to the petitioners. An order was made distributing $ 9,000 to the petitioners without bonds.
The final account of the executor was filed December 22, 1891, showing that he had received $ 20,965.78, and after paying $ 9,000, distributed to the mother and sisters of the testator, he had in his hands the sum of $ 5,523.80.
Sallie Levenstone did not join in the petition of Fannie, Julia, and Ada Levinson; but after the settlement of the executor's account she made an application for distribution to her in accordance with the agreement made by the other legatees.
It is claimed that by the terms of the will the $ 3,000 should not be given to Sallie Levenstone until after the death of Fannie Levinson; that until that time the income thereof is to go to other persons, some of whom may be born hereafter. We think this contention is unsound. Neither the mother nor the sisters certainly could raise such an objection after having procured an order of distribution upon the faith of their consent to an immediate distribution of the legacy of this respondent, and certainly the executor stands in no better position than they would under the same circumstances. The supposition that the sister may marry and die leaving issue entitled to the income is a contingency too remote to be considered. Furthermore, the contention assumes that under no circumstances can there be any payment of the $ 3,000 legacy until after the expiration of five years. It is true the testator contemplated the continuance of the trust for the term of five years, expecting that the trustee would carry out his wishes. This expectation has not been fulfilled -- the trust cannot be executed. A fair construction of the various provisions of the will, we think, supports the view taken by the court below. The testator's chief concern was for the care and support of his mother during her lifetime. If she did not survive him, it was provided that the one half of the profits set aside for her should go to his sisters "during the continuance of this trust." It is expressly provided that "upon the termination of said trust said Benjamin Newman shall transfer. .. . the sum of $ 3,000 to Miss Sallie Levenstone,. .. . the rest and residue of said partnership interest and share to be transferred. .. . and paid over to. .. . Julia and Ada Levinson." There being no trust to carry out, time does not enter into the question to be considered, except for the protection of the mother; so long as she is willing to accept a sum certain, instead of a monthly allowance of $ 200, and the other legatees are willing that she should be paid that amount, there is no ground of complaint.
The objections to the sufficiency of the petition for distribution are not well taken. It shows that a year had elapsed from the date of the letters; that due notice to creditors had been published; that the time for presenting claims had expired; that all claims had been paid; that the testator had bequeathed to the petitioner the sum of $ 3,000; that Fannie, Julia, and Ada had agreed to a distribution as above stated, and that the legacy could be paid over to petitioner without loss to the creditors or any person interested in the estate. Other matters the court properly took judicial notice of. The question whether a bond should be given by any of the parties to a partial distribution is one entirely within the discretion of the court below.
The order appealed from is affirmed.