Estate of Rounds

This is an appeal by certain nieces and nephews of Sarah C. Rounds from an order refusing to make a partial distribution to them of the assets of her estate by reason of the fact that they are heirs, respectively, of her sister, Mary E. Barbour, and her brother, Hiram Edwards.

Mrs. Rounds died testate. She left certain legacies to charity and to nephews and nieces, and her will contained the following provision: “To each of my sisters and brother living five hundred ($500) dollars. ’ ’ At the time the will was executed she had two sisters and a brother living. Two of them, Hiram A. Edwards and Mrs. Mary E. Barbour, predeceased the testatrix. Appellants here, who are the sons and daughters of the deceased sister and brother of Mrs. Rounds, are, under section 1310 of the Civil Code, as they assert, entitled to take, as descendants, their proportions of the legacies of these predeceased beneficiaries under the will of Mrs. Rounds.

The whole question presented to this court turns upon the interpretation of the word “living” as used in the will. [1] Appellants cheerfully concede that ordinarily a will speaks as of the time of the death of the testator or testatrix, but they insist…