Guirado

The executor of the estate of Minnie L. Carter, deceased, devisee and legatee under the will of Jessie Lee Toler, deceased, appeals from an order for preliminary distribution of the estate of Jessie Lee Toler made in response to a petition therefor by Susan E. Ponder, guardian of Benjamin Edward Toler, an incompetent person, in his behalf. Benjamin is Jessie’s brother and a devisee and legatee under her will.

Jessie Toler died on September 26, 1946. Her will was admitted to probate on October 18, 1946, and the Bank of America National Trust and Savings Association was appointed executor of her estate. Paragraph “First” of decedent’s will directed the executor to pay the expenses of her last illness, her funeral charges, debts and inheritance and estate taxes “as soon as it shall have sufficient funds in its hands therefor, ...” Paragraph “Fourth” made two specific bequests of $5,000 each. Paragraph “Fifth” gave, devised, and bequeathed the “rest and residue” of decedent’s estate to Benjamin Toler “for and during his natural life, with the right to the full use and benefit of all of the rents, issues and profits therefrom with the remainder over in fee to . . . [named persons,…