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Estate of Herman
Citations: 166 Cal. App. 2d 55; 332 P.2d 788; 1958 Cal. App. LEXIS 1368Docket: Civ. 22977
Court: California Court of Appeal; December 11, 1958; California; State Appellate Court
Pearl Canis appealed an order directing the executor of Albert Herman's estate to sell a 1956 Oldsmobile and household furniture that were bequeathed to her in Herman's will. The decedent died leaving seven siblings, including Canis, as heirs. The will, witnessed by two individuals, including Canis, included specific bequests and a trust for the decedent's niece, Rebecca Hammes, but did not address the fate of the estate beyond the trust's $10,000 limit. The executor sought court instructions, citing the depreciating nature of the bequeathed items and incurred storage costs. Other beneficiaries contended the bequest to Canis was invalid under Probate Code section 51, which voids gifts to subscribing witnesses unless two disinterested witnesses are present. Canis opposed the sale. The executor maintained that the court could authorize the sale under Probate Code section 770, which addresses the sale of depreciating assets, regardless of the validity of Canis's bequest. The court's order and the applicability of section 51 were central to the appeal, as the estate had sufficient assets to cover debts without selling specifically bequeathed property. Section 51 stipulates that gifts to a subscribing witness are void unless additional disinterested witnesses are present, unless the witness would have a claim to the estate if the will were not validated. The estate's appraised value is $76,040.96, and it is established that if the decedent had died intestate, the appellant would inherit more than the value of the disputed automobile and household furniture. Thus, the bequest to the appellant remains valid despite her role as a subscribing witness to the will, as it does not exceed her potential share of 1/7th of the estate. The probate court's authority to direct the sale of specifically bequeathed property is addressed, revealing that the Probate Code, section 750, sets the order for paying debts and administrative expenses: first from property expressly allocated by the will, then from property not willed, and lastly from residuary gifts. This section also states that specific bequests may be exempt from such liabilities if necessary to fulfill the testator's intentions. The court emphasized that property not disposed of by the will should be used first to settle estate debts, ensuring the testator's actual dispositions are honored. The confusion for the appellant lies in not distinguishing between the will's distribution and legal debt payment responsibilities. The court assesses the will's terms before applying laws regarding debt payment, which are meant to minimally disrupt the will's provisions. Additionally, section 770 of the Probate Code does not alter the provisions of section 750; it only pertains to the sale procedures for perishable or depreciating property. Consequently, the trial court incorrectly ordered the sale of the specifically bequeathed automobile and household furniture. The order is therefore reversed.