Duit

—Testator Edward McLaughlin died on December 19, 1962. His gross estate for federal estate tax purposes was $2,575,744.43.

Testator, in his will, directed: ‘1 Third: I give, devise and bequeath the sum of $40,000.00 cash lawful money of the United States, but not in excess of five (5%) per cent of the distributable assets of my estate, to Mrs. Louis E. Duit. . . .” First Western Bank and Trust Company is the executor and appellant. Eva Mae Duit (Mrs. Louis E.) is respondent.

Respondent is also the beneficiary of a $20,000 insurance policy on the testator’s life.

Clause Fifth gives the residue of his estate to his five children.

By codicil, there was a gift of $10,000 to one Gladys Ham-den in language similar to that of paragraph Third, limiting the bequest to 2% percent of the distributable estate.

In its fourth and final accounting, executor interpreted the *518 language of paragraph Third to require a proration of federal estate taxes and charged respondent with California inheritance taxes. Respondent objected to this interpretation in its application to paragraph Third. She conceded the validity of the tax burden on the insurance proceeds.

The trial court held that the…