Upon the hearing of this case in Department an opinion was prepared by Mr. Commissioner Haynes, of which the following portion is now adopted as part of the opinion of the court: —
"Katherine Nowland appeals from an order made on her petition for partial distribution of said estate.
"Susanna Brown died testate in the city and county of San Francisco, on the twenty-seventh day of September, 1899. The petition alleged that the will of said deceased was duly admitted to probate, and that T.C. Kierulff and Albert C. Hooper were duly appointed the executors thereof, and letters testamentary were duly issued to them, which said letters are still in full force, that an inventory and appraisement of said estate was filed, showing that said estate was appraised at $45,098.43; that all of the debts of said deceased and of the estate have been paid, and nearly, if not all, of the specific legacies have also been paid, and that more than one year has elapsed since said letters were issued to said executors.
"That by the terms of said will there was given and bequeathed to T.C. Kierulff and Albert C. Hooper, the sum of five thousand dollars in trust, to pay petitioner the monthly sum of twenty dollars during her natural life. The portion of said will relating thereto is as follows: —
"`I give and bequeath to T.C. Kierulff and Albert C. Hooper, and the survivor of them, as joint tenants, the sum of $5,000, in trust, nevertheless, for the following uses and purposes, and not otherwise.
"`(a) To invest the said money in some safe investment, in their discretion, with power, at all times to reinvest the same as they may deem best.
"`(b) Out of the income arising from the investment of said fund, as aforesaid, to pay Kate Nowland, a half-sister of my deceased husband, Richard Brown, at present residing at Los Gatos, California, monthly the sum of $20 for and during the term of her natural life, and at her death the said
fund, with its accumulations, over and above the income payable to said Katherine Nowland, as aforesaid, shall go to my residuary legatees hereinafter named.'
"It is further alleged that at the time of the death of said testatrix, and for many years prior thereto, petitioner, who is now and has been for many years a confirmed cripple, was and had been dependent upon said testatrix for support and maintenance ever since the death of the brother of petitioner, the husband of decedent, who, prior to that time, had wholly supported petitioner.
"It is further alleged that the executors had not paid any portion of said monthly sum, and refused to do so, claiming that nothing is due petitioner until a distribution shall be had, and that there is due this petitioner on account of said monthly sum bequeathed to her, as aforesaid, the sum of twenty dollars per month from said twenty-seventh day of September, 1899, the date of the death of said decedent.
"Petitioner prayed for an order directing said executors to distribute to themselves, as trustees under the said will, the sum, of five thousand dollars, and also the sum of twenty dollars per month from the date of the death of the testatrix, directing the payment to petitioner of the said sum of twenty dollars per month from said date to the date of distribution, and thereafter to pay her the sum of twenty dollars per month during the term of her natural life. The answer consisted of general denials.
"The court in its findings recited the provisions of the will above quoted, and that the will contained, in addition thereto, the following clause in a separate paragraph: `It is my will that my executors shall not, nor shall either of them, be charged with interest upon any bequests herein made.' The court further found: `That for many years prior to the death of testatrix said petitioner was, and still is, a confirmed cripple, and had been in the monthly receipt of sums varying from $20 to $10 from said testatrix, and for many years prior to 1899 said sum had been $20 and up to April of that year, but in July, August, and September the monthly allowance had been $10.' That said twenty dollars per month bequeathed to said petitioner, Katherine Nowland, by said will is not an annuity nor a legacy for maintenance.
"That said petitioner is entitled to the sum of twenty
dollars monthly out of the income of said sum of five thousand dollars only from the date of this decree of distribution; that said petitioner is not entitled to any interest upon said amounts; and that `the said petitioner is not entitled to said monthly payments from the death of said testatrix, but only from the date of distribution herein.'
"As conclusions of law, the court found: `That said petitioner is entitled to have the sum of $5,000 distributed to said trustees under the will, and that she be paid monthly out of the income of $5,000, the sum of $20, commencing November 20, 1902, and is not entitled to be paid anything prior to that date,' and thereupon entered judgment accordingly.
"This appeal is by the petitioner from the judgment or order except that part of it which distributes to the said trustees said sum of five thousand dollars for the purposes expressed in the will. The record does not contain any statement or bill of exceptions.
"Appellant presents the following questions: `(1) Is the bequest to appellant an annuity? (2) Is appellant entitled to the $20 per month from the date of the death of the testatrix? (3) Is she entitled to $20 per month in any event, or only the income that may arise from the sum of $5,000 when invested?'
"The first and third of these inquiries may be answered together. It is not an annuity, for the reason that the amount to be paid monthly is not certain. The amount to be invested by the trustees is fixed, but the income which may be realized therefrom is not. The income realized may be less than twenty dollars per month, but she is entitled to the whole of the income if it does not exceed that sum per month. `An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy.' (Civ. Code, sec. 1357, subd. 3; Bartlett v. Slater, 53 Conn. 102;1 Dewey's Estate,153 N.Y. 63.)"
The remaining question is whether or not the appellant is entitled to twenty dollars per month from the death of the testatrix, or only from the time of the entry of the decree appealed from. It is contended on the part of the appellant
that the legacy for her benefit is a legacy for maintenance, which, under section 1369 of the Civil Code, bears interest from the death of the testatrix. This does not appear from the face of the will, but the contention is that the specific facts found by the court necessarily make it so. Reliance is placed upon the decision in the case of In re Mackay, 107 Cal. 308, in which it was held that although the will did not expressly declare that the legacy was for the maintenance of the legatee, yet, if the evidence showed that the legatee had been supported by the testator for many years prior to his death, it would be construed to be a legacy for maintenance. The essential element present in that case, however, is lacking in this. The petition alleged, as before stated, that for many years prior to the death of the testatrix the petitioner was dependent upon the deceased for her support and maintenance.
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Upon the hearing of this case in Department an opinion was prepared by Mr. Commissioner Haynes, of which the following portion is now adopted as part of the opinion of the court: —
"Katherine Nowland appeals from an order made on her petition for partial distribution of said estate.
"Susanna Brown died testate in the city and county of San Francisco, on the twenty-seventh day of September, 1899. The petition alleged that the will of said deceased was duly admitted to probate, and that T.C. Kierulff and Albert C. Hooper were duly appointed the executors thereof, and letters testamentary were duly issued to them, which said letters are still in full force, that an inventory and appraisement of said estate was filed, showing that said estate was appraised at $45,098.43; that all of the debts of said deceased and of the estate have been paid, and nearly, if not all, of the specific legacies have also been paid, and that more than one year has elapsed since said letters were issued to said executors.
"That by the terms of said will there was given and bequeathed to T.C. Kierulff and Albert C. Hooper, the sum of five thousand dollars in trust, to pay petitioner the monthly sum of twenty dollars during her natural life. The portion of said will relating thereto is as follows: —
"`I give and bequeath to T.C. Kierulff and Albert C. Hooper, and the survivor of them, as joint tenants, the sum of $5,000, in trust, nevertheless, for the following uses and purposes, and not otherwise.
"`(a) To invest the said money in some safe investment, in their discretion, with power, at all times to reinvest the same as they may deem best.
"`(b) Out of the income arising from the investment of said fund, as aforesaid, to pay Kate Nowland, a half-sister of my deceased husband, Richard Brown, at present residing at Los Gatos, California, monthly the sum of $20 for and during the term of her natural life, and at her death the said
fund, with its accumulations, over and above the income payable to said Katherine Nowland, as aforesaid, shall go to my residuary legatees hereinafter named.'
"It is further alleged that at the time of the death of said testatrix, and for many years prior thereto, petitioner, who is now and has been for many years a confirmed cripple, was and had been dependent upon said testatrix for support and maintenance ever since the death of the brother of petitioner, the husband of decedent, who, prior to that time, had wholly supported petitioner.
"It is further alleged that the executors had not paid any portion of said monthly sum, and refused to do so, claiming that nothing is due petitioner until a distribution shall be had, and that there is due this petitioner on account of said monthly sum bequeathed to her, as aforesaid, the sum of twenty dollars per month from said twenty-seventh day of September, 1899, the date of the death of said decedent.
"Petitioner prayed for an order directing said executors to distribute to themselves, as trustees under the said will, the sum, of five thousand dollars, and also the sum of twenty dollars per month from the date of the death of the testatrix, directing the payment to petitioner of the said sum of twenty dollars per month from said date to the date of distribution, and thereafter to pay her the sum of twenty dollars per month during the term of her natural life. The answer consisted of general denials.
"The court in its findings recited the provisions of the will above quoted, and that the will contained, in addition thereto, the following clause in a separate paragraph: `It is my will that my executors shall not, nor shall either of them, be charged with interest upon any bequests herein made.' The court further found: `That for many years prior to the death of testatrix said petitioner was, and still is, a confirmed cripple, and had been in the monthly receipt of sums varying from $20 to $10 from said testatrix, and for many years prior to 1899 said sum had been $20 and up to April of that year, but in July, August, and September the monthly allowance had been $10.' That said twenty dollars per month bequeathed to said petitioner, Katherine Nowland, by said will is not an annuity nor a legacy for maintenance.
"That said petitioner is entitled to the sum of twenty
dollars monthly out of the income of said sum of five thousand dollars only from the date of this decree of distribution; that said petitioner is not entitled to any interest upon said amounts; and that `the said petitioner is not entitled to said monthly payments from the death of said testatrix, but only from the date of distribution herein.'
"As conclusions of law, the court found: `That said petitioner is entitled to have the sum of $5,000 distributed to said trustees under the will, and that she be paid monthly out of the income of $5,000, the sum of $20, commencing November 20, 1902, and is not entitled to be paid anything prior to that date,' and thereupon entered judgment accordingly.
"This appeal is by the petitioner from the judgment or order except that part of it which distributes to the said trustees said sum of five thousand dollars for the purposes expressed in the will. The record does not contain any statement or bill of exceptions.
"Appellant presents the following questions: `(1) Is the bequest to appellant an annuity? (2) Is appellant entitled to the $20 per month from the date of the death of the testatrix? (3) Is she entitled to $20 per month in any event, or only the income that may arise from the sum of $5,000 when invested?'
"The first and third of these inquiries may be answered together. It is not an annuity, for the reason that the amount to be paid monthly is not certain. The amount to be invested by the trustees is fixed, but the income which may be realized therefrom is not. The income realized may be less than twenty dollars per month, but she is entitled to the whole of the income if it does not exceed that sum per month. `An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy.' (Civ. Code, sec. 1357, subd. 3; Bartlett v. Slater, 53 Conn. 102;1 Dewey's Estate,153 N.Y. 63.)"
The remaining question is whether or not the appellant is entitled to twenty dollars per month from the death of the testatrix, or only from the time of the entry of the decree appealed from. It is contended on the part of the appellant
that the legacy for her benefit is a legacy for maintenance, which, under section 1369 of the Civil Code, bears interest from the death of the testatrix. This does not appear from the face of the will, but the contention is that the specific facts found by the court necessarily make it so. Reliance is placed upon the decision in the case of In re Mackay, 107 Cal. 308, in which it was held that although the will did not expressly declare that the legacy was for the maintenance of the legatee, yet, if the evidence showed that the legatee had been supported by the testator for many years prior to his death, it would be construed to be a legacy for maintenance. The essential element present in that case, however, is lacking in this. The petition alleged, as before stated, that for many years prior to the death of the testatrix the petitioner was dependent upon the deceased for her support and maintenance. The court, however, fails to find this fact, but does find that the petitioner was for many years prior to the death of the testatrix a confirmed cripple, and had been in the monthly receipt of sums from the testatrix varying from twenty dollars to ten dollars per month. In addition to these specific facts, the court found expressly that the legacy bequeathed to the petitioner is not a legacy for maintenance. This was the ultimate fact upon which the decision of the case depended, so far as the right to interest from the death of the deceased was concerned. The specific facts found do not necessarily show that it was a legacy for maintenance. The deceased may have had many reasons for making the monthly payments other than the reason that it was necessary for her support. There is no bill of exceptions showing the evidence, and we must upon this appeal take the findings of fact as absolutely true, and presume that the evidence necessary to sustain them was presented to the court below.
The appellant cites in support of her claim to payment from date of death section 1366 of the Civil Code, as follows: "In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death." If this section was applicable, of course the appellant would be entitled to the monthly payments from the time of the death of the testatrix. But the bequest in this case was not of the interest or income of a certain sum to be paid by the executors of the estate. The testatrix bequeathed the sum
of five thousand dollars to certain trustees, and the monthly income was to be paid by the trustees, and not by the executors. Necessarily, the trustees could not begin payment until they received the fund and invested it so as to produce an income. The intention of the testatrix must therefore have been that payments were not to begin until the fund from which it was to be produced was distributed to the trustees, who were to make the payments. The distinction is thus stated: "Where he absolutey gives the beneficiary a given income, and merely indicates in his will the source from which it is to be obtained, the general rule is that the income in such cases is to be estimated from the death of the testator. . . . But where the bequest is only of the income to be obtained from a certain specified fund, . . . it is held that the beneficiary can receive only the actual income when received from such fund." (Page on Wills, sec. 601.) A gift of an income from a certain fund is not an annuity, and interest does not begin thereon until one year from the death of the deceased. (Booth v.Ammerman, 4 Bradf. 129; Bartlett v. Slater, 53 Conn. 102.1) The petitioner expressly disclaims any right to the payment of interest upon the monthly payments from the death of the deceased. As to the claim that she is entitled to interest on the five thousand dollars bequeathed to the trustees, we think that is covered by the provision in the will that the executors should not be charged with interest upon any bequest therein made. We think the decree of the court was in accordance with the proper construction of the will.
The order is affirmed.
Angellotti, J., Van Dyke, J, Henshaw, J., and Beatty, C.J., concurred.
1 55 Am. Rep. 73.