Herdman v. Boardman

California Court of Appeal

Herdman v. Boardman

276 P. 394, 98 Cal. App. 119, 1929 Cal. App. LEXIS 596

CourtCalifornia Court of Appeal

DecidedApril 4, 1929

DocketDocket No. 6461.

StatusPublished

This text of 276 P. 394 (Herdman v. Boardman) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herdman v. Boardman, 276 P. 394, 98 Cal. App. 119, 1929 Cal. App. LEXIS 596 (Cal. Ct. App. 1929).

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Opinion

HOUSER, J.

This appeal is from an order of partial distribution of an estate and a judgment therein made by the superior court by which the sum of $4,775 was ordered distributed and paid to one Robert Herdman, a legatee in the will of N. Belle Griggs, deceased.

So far as is here material, the will which furnished the authority for the order and the judgment in question provided that the trustee therein named distribute—

“To Anna Herdman, the income from Five Thousand Dollars ($5,000.00) to be paid to her semi-annually during *120 the term of her natural life and upon her death to pay said principal sum of Five Thousand Dollars ($5,000.00) to her son, Robert Herdman.”

It appears that Anna Herdman predeceased the testatrix herein.

The basic contention of appellant is that the legacy to Anna Herdman lapsed with her death, and consequently that the trial court erred in its order and judgment. Certain authorities, including Estate of Goodfellow, 166 Cal. 411 [137 Pac. 12], are cited by appellant in support of his position. Without here setting forth the facts upon which either of such authorities is based, it may suffice to state that none of them presents a situation paralleling either the facts or the law applicable to the question here involved. On the other hand, both statutory and judicial authority support the conclusion reached by the trial court. (Secs. 1344, 741, 742, Civ. Code; Estate of Gregory, 12 Cal. App. 309 [107 Pac. 566].) To the same effect are Frelinghuysen v. New York Life Ins. etc. Co., 31 R. I. 150 [Ann. Cas. 1912B, 237, 77 Atl. 98]; In re Marshall, 80,Misc. Rep. 1 [141 N. Y. Supp. 540]; Ives v. Central Union Trust Co., 110 Misc. Rep. 740 [180 N. Y. Supp. 343]; In re Grinnell's Estate, 115 Misc. Rep. 722 [185 N. Y. Supp. 909]; Payne v. Reece, 297 Mo. 54 [247 S. W. 1006]; Allen v. Mayfield, 20 Ind. 293; Richmond v. Van Hook, 38 N. C. 581; Dunlap v. Dunlap, 4 Desaus. (S. C.) 305; Coleman v. Hutchenson, 3 Bibb (6 Ky.), 209 [6 Am. Dec. 649]. See, also, 22 Cal. Jur. 816.

The judgment and order are affirmed.

Conrey, P. J., and York, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 1, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 3, 1929.

All the Justices concurred.

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HOUSER, J.

This appeal is from an order of partial distribution of an estate and a judgment therein made by the superior court by which the sum of $4,775 was ordered distributed and paid to one Robert Herdman, a legatee in the will of N. Belle Griggs, deceased.

So far as is here material, the will which furnished the authority for the order and the judgment in question provided that the trustee therein named distribute—

“To Anna Herdman, the income from Five Thousand Dollars ($5,000.00) to be paid to her semi-annually during *120 the term of her natural life and upon her death to pay said principal sum of Five Thousand Dollars ($5,000.00) to her son, Robert Herdman.”

It appears that Anna Herdman predeceased the testatrix herein.

The basic contention of appellant is that the legacy to Anna Herdman lapsed with her death, and consequently that the trial court erred in its order and judgment. Certain authorities, including Estate of Goodfellow, 166 Cal. 411 [137 Pac. 12], are cited by appellant in support of his position. Without here setting forth the facts upon which either of such authorities is based, it may suffice to state that none of them presents a situation paralleling either the facts or the law applicable to the question here involved. On the other hand, both statutory and judicial authority support the conclusion reached by the trial court. (Secs. 1344, 741, 742, Civ. Code; Estate of Gregory, 12 Cal. App. 309 [107 Pac. 566].) To the same effect are Frelinghuysen v. New York Life Ins. etc. Co., 31 R. I. 150 [Ann. Cas. 1912B, 237, 77 Atl. 98]; In re Marshall, 80,Misc. Rep. 1 [141 N. Y. Supp. 540]; Ives v. Central Union Trust Co., 110 Misc. Rep. 740 [180 N. Y. Supp. 343]; In re Grinnell's Estate, 115 Misc. Rep. 722 [185 N. Y. Supp. 909]; Payne v. Reece, 297 Mo. 54 [247 S. W. 1006]; Allen v. Mayfield, 20 Ind. 293; Richmond v. Van Hook, 38 N. C. 581; Dunlap v. Dunlap, 4 Desaus. (S. C.) 305; Coleman v. Hutchenson, 3 Bibb (6 Ky.), 209 [6 Am. Dec. 649]. See, also, 22 Cal. Jur. 816.

The judgment and order are affirmed.

Conrey, P. J., and York, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on May 1, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 3, 1929.

All the Justices concurred.

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276 P. 394, 98 Cal. App. 119, 1929 Cal. App. LEXIS 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herdman-v-boardman-calctapp-1929.

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