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Winfrey v. Clapp (Kan.).

Wilmington Transp. Co. v. Railroad Com-
mission of California (Cal.)..

Wilson v. Baker Clothing Co. (Idaho).
Winbigler's Estate, In re (Cal.).

Wing, People v. (Cal. App.).
Wing, People v. (Cal. App.).

Winona Wagon Co., Trousdale v. (Idaho).. 372
Winston v. Idaho Hardwood Co. (Cal. App.)
Wishkah Boom Co., Murray v. (Wash.)... 130
Witcher, Reed v. (Cal. App.)..
Withers, Shores v. (Cal.)..

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.1153

Wright, State v. (Wash.).

.1198

896

1

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798

47

Yakima Valley Canal Co., Baker v. (Wash.) 342 Yaksum, Felix v. (Wash.)..

.1037

48

Yocom v. Sheridan (Or.).

999

601

Young v. Young (Cal.App.). Young, Yttregard v. (Wash.). Yttregard v. Young (Wash.).

.1065

.1043

.1043

294

7

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Wohlforth v. Kuppler (Wash.).

477

Wolfe, Commercial Union Assur. Co., Limited, of London, Eng., v. (Okl.)..

Zimmerman v. Helena Light & R. Co. (Mont.)

.1195

704

Zizich v. Holman Sec. Inv. Co. (Wash.)...1028

REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

COLORADO.

State ex rel. Taggart v. Masons' & Odd Fellows' Joint Stock Ass'n, 136 P. 930.

Johnson v. First Nat. Bank of Denver, 131 P. Work v. Work, 136 P. 236.

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Board of Medical Examiners of Oklahoma v. Gulley, 136 P. 1083.

Farm Land Mortgage Co. v. Wilde, 136 P.
Diffey v. State, 135 P. 942.
1078.

Healer v. State, 132 P. 1195.
Herrell v. State, 134 P. 1139.
Holmes v. Dillard, 136 P. 408.
Hunter v. State, 134 P. 1134.
Newman v. State, 132 P. 1196.
McLaughlin v. State, 133 P. 1196.
Sayers v. State, 135 P. 944.
Sayers v. State, 135 P. 1073.

OREGON.

Cartwright v. Moffett, 136 P. 881.

State v. Massachusetts Bonding & Ins. Co., 136 Edlefson v. Portland Ry., Light & Power Co., P. 905.

136 P. 832.

Irvine v. Irvine, 136 P. 18.

t

THE

PACIFIC REPORTER

VOLUME 137

(166 Cal. 434)

In re WINBIGLER'S ESTATE.
(L. A. 3,517.)

(Supreme Court of California. Dec. 3, 1913. Rehearing Denied Jan. 2, 1914.)

1. EXECUTORS AND ADMINISTRATORS (§ 21*)ADMINISTRATION WITH WILL ANNEXED.

Under the direct provisions of Code Civ. Proc. § 1350a, the granting of letters with the will annexed, in a case where the testator appointed no executor, must be made in accordance with the rules for the granting of administration in ordinary cases of intestacy.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 106–115; Dec. Dig. 21.*]

2. EXECUTORS AND ADMINISTRATORS (§ 21*)RIGHT TO ADMINISTRATION.

Under Code Civ. Proc. 1365, providing that only those relations of a decedent entitled to succeed to his personal property or some portion thereof are entitled to administer the estate, the heir at law of a decedent, who made a will disposing of his entire estate, but appointing no executor, is not entitled to letters of administration with the will annexed unless he takes some part of the testator's personal

estate under the will.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 106-115; Dec. Dig. § 21.*]

3. WILLS (§ 535*)-CONSTRUCTION.

A testator died leaving an estate of $60,000, and provided by will that should his estate be worth $40,000 at the time of his death, it should be divided as followed. He then, for reasons given, stated that he gave nothing to appellant, a niece, and gave legacies of sundry amounts to others, and made respondent residuary legatee. The will closed with the remark that, if the estate should be worth more than the above sum, "all heirs" should receive a larger amount. Held that, as the testator expressly disinherited appellant and gave his reasons, appellant cannot be considered as included in the term "heirs," although she was really his heir at law; the will being drawn by the testator himself, a layman.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 1157-1160; Dec. Dig. § 535.*]

Tobias R. Archer, of Los Angeles, for appellant. A. G. Reily, of Los Angeles, and A. C. Mouser, of San Diego, for respondent.

ANGELLOTTI, J. According to the briefs, the only question presented on this appeal is as to the correctness of the action of the court below in appointing one Fannie S. Cake administratrix with the will annexed of the estate of deceased, in preference to Fannie M. Reid, who was also an applicant.

[1] The will of deceased did not name an executor, with the result that "letters of administration with the will annexed must be issued as designated and provided for in granting of letters in case of intestacy." Code Civ. Proc. § 1350a.

[2] Appellant Fannie M. Reid is a child of a deceased brother of deceased (Ira Winbigler), and is entitled to letters under the provisions of section 1365, Code of Civil Procedure, in preference to respondent, a cousin of deceased, if she "is entitled to succeed to" the personal estate of deceased or some portion thereof; the section expressly providing that relatives of the deceased are entitled to administer only when they are entitled to succeed to his personal estate or some portion thereof. It is settled that, in view of these provisions, an heir at law of the deceased is not as such entitled to letters of administration with the will annexed, unless he takes under the will, i. e., of course, if the will effectually disposes of all the property of the deceased. See Estate of Crites, 155 Cal. 392, 101 Pac. 316, and cases there cited.

[3] The only question, then, is whether appellant is entitled, in view of the terms of the will, to take on distribution any of the property of deceased. Appellant's claim for a reversal is based entirely upon her contention that she is so entitled to take on distribution.

Department 1. Appeal from Superior Deceased died leaving an estate of the valCourt, San Diego County; W. R. Guy, Judge. ue of $60,000, a portion of the real property In the matter of the estate of George W. part thereof being subject to a mortgage on Winbigler, deceased. Fannie S. Cake was which is due $7,000. His olographic will was granted letters of administration with the as follows: "I George H. Winbigler of San Diwill annexed in preference to Fannie M. ego, California U. S. A. Being of Sound mind Reid, and the latter appeals. Affirmed. and good health make this my last Will and Rehearing denied; Beatty, C. J., dissents. Testament. Should my Estate be worth the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 137 P.-1

Sum of Fourty thousand dollars at the time | clear enough therefrom that the testator inof my death, Then it shall be divided as giv- tended to exclude the son and daughter of en below To my Neice & Nephew, Son and his brother Ira Winbigler from all participadaughter of my Brother Ira Winbigler I give tion in his estate in any event. This appears Nothing. this is because they were so fool- to have been his first thought, and the one ish as to get mad and have Kept so for year upon which he placed special emphasis. The at their rich uncle said George H. Winbigler only possible doubt in the matter is caused Who would have loved and helped them If by the use of the word "heirs" in the final they would have let him. To my Only and clause. While appellant is technically an beloved Sister Mrs. Bella McComb of Fort heir at law of deceased, we are of the opinScott Kansas I give the sum of Three Thou- ion that the learned judge of the trial court sand ($3,500) five hundred dollars. If she was entirely warranted in concluding, in should have died before I pass away, then view of all the provisions of the will, that this bequest shall be devided among her liv- the word "heirs" was not used by deceased ing children. To my beloved Niece Mildred in the ordinary legal sense as including only McComb of Fort Scott Kansas daughter of those who would have succeeded to his propmy Sister Bell McComb the Sum of Three erty had he died intestate. Evidently the Thousand ($3,000) dollars. To my beloved will is not the work of one skilled in the use Niece Jennie O. Richards of Hamilton Mon- of legal terms. Taking the whole will totana and her son George Richards and her gether as we must do, for the purpose of asdaughter Eugena Richards I give the Sum of certaining the intent of the testator, such inEight Thousand ($8,000.00) Each to share tent appears to us reasonably clear. The dealike. Should the said Jennie C. Richard ceased was evidently making a division of have died before I pass away then the said his estate among those whom he desired to George & Eugena Richard Shall have equal share in it, upon the assumption that it was shares of the $8,000. To My beloved Cousin worth at least $40,000. If it was worth as Lollie Winbigler Eastman of Winchester In- much as $40,000, he wished his sister Mrs. diana Three thousand ($3,000) dollars To McComb to have $3,500, and his niece, Jennie my beloved Cousin Sallie Winbigler of An- C. Richards, and her two children to have sonia Indiana Three thousand ($3,000) dol- $8,000, and so on; while any residue after lars For my burial & Monument the Sum payment of debts, funeral and monument of One thousand ($1,000) dollar Shall be used. expenses, was to be divided equally between Now after all debts have been settled then respondent and his cousin Lillian Winbigler. the ballance of my Estate Shall be devided If it turned out to be worth more than $40,between my most beloved Cousin Mrs. Fannie 000, he wished those for whom he had al$. Cake and Sister Lillian Winbigler my be- ready provided on the basis of a $40,000 esloved Cousin, both of Los Angeles, Cal Now tate only to take the excess. It seems to us if my Estate Shall be worth more than the that this is an entirely reasonable construcabove Sum then all heirs, Shall receive the tion of the will, and, in fact, the only realarger amount. Dated this 19 day of Jan- sonable construction that can be given to it. uary, 1912." The meaning thus given to the words "all heirs" is one that, under the circumstances, may fairly be attributed to the testator, and so reading the will all portions thereof.are consistent with one another.

Appellant is the person referred to in the will as a niece, the daughter of "my brother Ira Winbigler." Respondent is the Mrs. Fannie S. Cake who is one of the residuary devisees and legatees. The claim of appellant is substantially that the express provision that appellant and her brother, children of Ira Winbigler, shall take nothing, is limited to the contingency that the estate is not worth exceeding $40,000, and that it was the expressed intention of the testator that if the estate was worth more than that amount all heirs at law of the deceased should at least share in the excess over $40,000. It is further suggested that, the estate exceeding $40,000 in value, the only operative part of the will is the last clause thereof, with the result that the whole property goes only to heirs at law of deceased, to the exclusion altogether of such of the devisees and legatees as are not heirs at law. The latter claim is, it appears to us, entirely without support in the language used.

While the will of deceased is not to be commended as being in all respects a model of clearness and precision, we think it is

The order appealed from is affirmed.
We concur: SLOSS, J.; SHAW, J.

(166 Cal. 399)

In re MARTIN'S ESTATE. (S. F. 6,450.) (Supreme Court of California. Nov. 20, 1913.) 1. EXECUTORS AND ADMINISTRATORS (§ 17*)RIGHT OF ADMINISTRATION RIGHT OF WIDOW.

Ordinarily the widow is entitled to letters of administration, unless she waives her right. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 43-59; Dec. Dig. § 17.*]

2. EXECUTORS AND ADMINISTRATORS (§ 17*)—

RIGHT OF WIDOW-WAiver.

The rendition of an interlocutory decree of divorce against a wife before her husband's death would not take away her right to administer the estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 43-59; Dec. Dig. § 17.*]

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