Shattuck

Legatees and heirs at law separately appeal from decree settling second account and of final distribution. The appeal of the legatees raises the question of the proper order of resort to a lapsed legacy for payment of expenses of administration and specific legacies.

The holographic will bequeathed $20,000 to Nat Sehmulowitz, $25,000 to F. P. Gray, $10,000 to Mrs. F. P. Gray, $8,000 to the Bide-A-Wee Home for homeless dogs, $3,000 to Fleishhaeker Zoo, and provided that “all the rest, residue and remainder” of the estate go in equal shares to Mr. Schmulowitz and Mr. and Mrs. Gray. Mr. Gray predeceased testatrix. Since he was not related to testatrix, both the legacy of cash and the residuary bequest to him lapsed. (Prob. Code, § 92.) The probate court found that the property of the estate “not disposed of by the will” consisted of the $25,000 bequest to Mr. Gray and the one-third of the residue bequeathed to him. It ordered resort, for payment of debts, expenses of administration and pecuniary legacies, first to the $25,000 bequest, and then to the intestate one-third of the residue. The effect of this order is to prevent the lapsed cash bequest from increasing the shares of the…