McGavin
McGavin v. San Francisco Protestant Orphan Asylum Society
Opinion
Lead Opinion
Kerrigan, J.
This is an appeal from a judgment setting aside a decree of distribution, and from an order denying a motion for a new trial.
On March 6, 1909, Charles Louis Scrimger died leaving surviving him as his only heirs Nancy Scrimger, his mother, and Kate McGavin, his sister, the plaintiff. On February 20th of the same year—less than thirty days prior to his death —he executed his will by the terms of which he bequeathed the bulk of his estate to his executors as trustees under a trust created thereby. The trust thus created was to terminate upon the death of either the mother or sister, when two-thirds of the trust estate was to be distributed to the survivor of them, and the remaining third to certain charitable institutions, three of which are the appellants herein. Admittedly these charitable bequests failed by reason of the testator dying within a period of thirty days of the making of his will, but nevertheless the probate court on January 5, 1911, distributed the estate of Charles Louis Scrimger in accordance with the terms of his will including those rendered void by reason of the provisions of section 1313 of the Civil Code. From this decree no appeal was taken.