Estate of Fitzgerald

In case No. 4189 the Roman Catholic Bishop of Monterey and Los Angeles, a corporation sole (hereafter called the Bishop), appeals from a decree of distribution of the estate of Catherine Fitzgerald, deceased. In case No. 4190 Annie McLinden, Sarah Sloan, Rosie Heaton, and Theresa Fitzgerald appeal from the same decree.

We will first consider the appeal in case No. 4189. The questions presented on this appeal arise out of the fact that by her will the decedent made several gifts to charitable societies or corporations which, according to the decision of the court, collectively exceeded one-third of the estate of the testatrix leaving legal heirs. The testatrix died on the third day of May, 1918. At that time section 1313 of the Civil Code read as follows:

The total distributable estate of the deceased, after settlement of the final account of the executors, and at the time of the entry of the decree of distribution, was $39,973.07.

The specific bequests for charitable uses in the aggregate amounted to $11,300.

The residue of the estate (after payment of all charges against the estate, including the specific bequests, but not including interest on bequests), amounted to…