Stoop

The estate of Richard F. Dailey appeals from a judgment ordering that respondents Eugene and Bernice Stoop each receive $5,000 from the estate.

The Facts

In July 1980, respondents petitioned the court pursuant to Probate Code section 1080 for a determination of their entitlement to a distribution from the estate of Richard Dailey. 1 In particular, each claimed *996 entitlement to a bequest of $5,000 under the following paragraph of Dailey’s will: “Third: I give the following general legacies:

At the commencement of trial before the court, counsel for the estate urged that the testator’s use of the term “absolute discretion” precluded the court from hearing evidence as to whether the testator intended respondents to be among those awarded $5,000. The court decided to hear the evidence subject to subsequent briefing as to the scope of the executor’s discretion.

Wells Fargo Bank’s Assistant Vice President and Trust Officer Thomas Solheim acted on behalf of the bank in its role as executor. Solheim testified that as he understood the language of the will, an individual could render “personal services” on a steady and faithful basis but still not qualify as one who “aided…