Mason v. Diaz
Mason v. Diaz
Opinion of the Court
This is an appeal by Daniel J. Diaz, individually and as guardian of the estate of Arturo S. Diaz, a minor, from an order confirming the sale of a parcel of real property belonging to the above named estate.
The decedent, a widow, died on February 26, 1946, leaving six children of whopi Arturo S. Diaz was the only minor. Aside from a small amount of cash and personal property of little value, admittedly insufficient to pay debts and expenses of administration, the estate consists of the parcel of real property the sale of which was confirmed by the decree appealed from. The property contains approximately 2}4 acres, having a street frontage of 194 feet and a depth of 530 feet, and is improved by a dwelling house 20 x 40 which is located in the middle of the parcel. The entire parcel is subject to a lien of approximately $900 in favor of the county of Los Angeles for medical aid furnished to the decedent and members of her family at the Los Angeles County General Hospital. The nature and extent of the other indebtedness of which counsel make mention does not appear although there is a recital in the trial court’s findings that the amount thereof is “in excess of $1,400.00 as settled in the decree of this court on April 9, 1951.” This decree is not before us and there is no evidence in the reporter’s transcript with respect thereto, but inasmuch as no objection is made to this finding by the appellant, and as it is conceded that the assets of the estate aside from the real property in question are insufficient to pay the debts and expenses of administration, we do not regard the matter as of particular consequence.
The will of the decedent comprises a series of eight documents in the Spanish language, each written, dated and signed in the handwriting of the decedent and bearing the various dates of December 13, 14, and 15, 1945. Copies of the originals, as well as the English translations thereof, are
"December 13, 1945
"Testament in favor of my sons Daniel and Arturo Diaz y Sumaza. Daniel shall be responsible for his minor brother, who is eight years of age, until he becomes twenty-one years old. For the benefit of both I bequeath the house and the furnishings, also fifty square feet of land around the house. ’ ’
"December 14, 1945
"Testament. In favor of Arturo Diaz. The house and the furnishings and fifty square feet. The brother who will take charge of him will have the right to live in the house and otherwise whatever rental the house may bring shall be applied to pay his expenses and if his brothers should not treat him well they shall be disqualified and another person shall be appointed to care for him and to educate him. The front room shall be Arturo’s bedroom as long as he is in this house. ’ ’
In another of the documents, dated December 15, 1945, which need not be set forth at length, we find the following: "All my debts are paid. I owe nothing to anyone. . . . All my children are obligated to pay for the funeral expenses, medicines and the doctor.”
The remaining documents comprising the will purport to dispose of real property described as "two lots on the south side which joins Elm Street to Baca Street, 50 feet wide by 190 feet long”; "one lot of 50 by 190”; "three lots”; "two lots 50 feet wide by 90 feet long”; and "one lot.” Inasmuch as it is undisputed that decedent owned no other real property, these various lots seemingly were to be carved out of the parcel of real property in question, although we are advised by counsel that there are no streets named Elm or Baca in the immediate vicinity, and the property has frontage only upon one street, the name of which does not appear.
Appellant’s objections to the sale in the_ trial court as well' as here are predicated upon the contention that the language of the will quoted above constitutes a valid specific devise to the minor Arturo of the house and some portion of the real property upon which it is situated, and (so it is said) as there are no valid specific devises of the remaining portion of the property, such remaining portion, under the provisions of Probate Code, section 750, should be resorted to for the payment of debts and expenses of admin
The trial court by the decree confirming the sale did not attempt to adjudicate the validity or the extent of the devise to Arturo although in its findings of fact and conclusions of law it purported to find as untrue the allegation contained in the objections of the appellant to the effect that the will did “specifically bequeath to the petitioner (appellant) the house situated upon said real property together with that portion of said real property upon which the house is situated.” While this finding or conclusion is assailed as unsupported by the evidence, we find it unnecessary to consider the question! as to the validity or extent of the devise to Arturo for, if the contention of appellant as to the validity of the devise be conceded, the order appealed from is otherwise adequately supported.
Probate Code, section 750, upon which appellant relies, reads as follows:
“If the testator makes provision by his will, or designates the estate to be appropriated, for the payment of his debts, the expenses of administration, or family allowance, they must be paid according to such provision or out of the estate thus appropriated, so far as the same is sufficient. If insufficient, that portion of the estate not disposed of by the will, if any, must be appropriated for that purpose; and if that is not sufficient, the property given to residuary legatees and devisees, and thereafter all other property devised and bequeathed is liable for the same, in proportion to the value or amount of the several devises and legacies, but specific devises and legacies are exempt from such liability if it appears to the court necessary to carry into effect the intention of the testator, and there is other sufficient estate.”
The first sentence of this section is a reenactment in substantially the same form as former section 1560 of the Code of Civil Procedure, while the second is based upon former sections 1562 and 1563 of the same code. The construction which has been accorded to this section and its predecessors
We have heretofore adverted to the fact that the decree appealed from does not purport to adjudicate the validity or extent of the device to Arturo, and an examination of the reporter’s transcript indicates that it was not the intention of the trial judge to do so. After having orally announced his decision to confirm the sale the trial judge, in answer to an inquiry by the clerk as to the disposition to be made of a
Notwithstanding the foregoing, we can well appreciate the apprehension of counsel for appellant in view of the trial court’s finding already adverted to which, in effect, declares that the will does not operate to devise to Arturo the house and a portion of the property in question. In order to avoid the possibility of the claim being advanced at some future date that this finding constitutes an adjudication of the invalidity of the devise to Arturo, the trial court is instructed to reframe its findings of fact and conclusions of law so as to expressly declare that no adjudication is made as to the validity or extent thereof, and that all questions with respect thereto are reserved for later determination in an appropriate proceeding.
While, for the reasons stated, we have refrained from undertaking to determine the validity or extent of the purported device to Arturo, we offer the observation that the devise of the house would seemingly carry with it at least so much of the land as it actually covers irrespective of any uncertainty in the language of the will as to a greater area (Crawfordsville v. Boots, 76 Ind. 32, 34; McMillan v. Solomon, 42 Ala. 356, 358 [94 Am.Dec. 654]). We also suggest for the con
As modified in the particulars hereinbefore mentioned, the decree is affirmed, appellant to recover costs of appeal from the estate, payable in due course of administration.
White, P. J., and Drapeau, J., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.