Estate of Kirby

8 Citing cases

  1. Estate of McIntyre

    189 Cal.App.2d 498 (Cal. Ct. App. 1961)   Cited 5 times
    Construing Cal. Civ. Code § 1265 and observing that "`Products, rents, issues or profits' refer not to the property itself or to its proceeds on sale but to the income derived from the property . . ."

    We, therefore, decide the case upon the issue as presented. However, we make the observation that since the homestead terminated (1) by direction of the testatrix to sell it, and (2) because she left no spouse or children to receive it the rights of general creditors are not unlike those in the Estate of Kirby (1926), 199 Cal. 135 [ 248 P. 517]. Except for the absence of a homestead the facts in that case and ours are almost identical.

  2. Estate of Keller

    134 Cal.App.2d 232 (Cal. Ct. App. 1955)   Cited 24 times

    This would appear to be the most sensible and reliable test. Estate of Kirby, 199 Cal. 135 [ 248 P. 517], is cited and relied upon by respondent as a case much the same in its general aspects as the case at bar. With this we agree.

  3. Cornell v. Cornell

    334 A.2d 888 (Conn. 1973)   Cited 8 times
    In Cornell, article first of the will created a testamentary trust comprising “ ‘one-third in value of all of my estate,’ “ with the surviving spouse being a life beneficiary.

    Blakeslee v. Pardee, 76 Conn. 263, 267, 56 A. 503; Bell v. Raymond, 20 Conn. 337, 341; In re Estate of West, 203 Kan. 404, 454 P.2d 462; St. Louis Union Trust Co. v. Krueger, 377 S.W.2d 303, 305 (Mo.); In re Estate of Frank G. Thompson, 98 N.J. Super. 36, 235 A.2d 920; Matter of Momand, 13 Misc.2d 990, 177 N.Y.S.2d 115, rev'd on other grounds, 7 App. Div. 2d 280, 182 N.Y.S.2d 565; 4 Page, Wills (Bowe-Parker Rev.) 33.3; 57 Am.Jur., Wills, 1191; 96 C.J.S., Wills, 791; note, 169 A.L.R. 903; see also Willcox v. Beecher, 27 Conn. 134; Estate of Kirby, 199 Cal. 135, 248 P. 517; Wells v. Menn, 158 Fla. 228, 28 So.2d 881; Aronson v. Congregation Temple De Hirsch, 138 So.2d 69, 72 (Fla.App.); Stoner v. Custer, 252 Ind. 661, 251 N.E.2d 668; Baylor v. National Bank of Commerce, 194 Va. 1, 72 S.E.2d 282; note, 169 A.L.R. 892. In Blakeslee v. Pardee, supra, the testator bequeathed to Ms wife a general legacy of "two thirds of all the personal property of whatever kind of which I may die possessed."

  4. In re Estate of West

    454 P.2d 462 (Kan. 1969)   Cited 17 times

    "We approve the better rule which provides that when a testator devises ten per cent of his estate, or any fractional part thereof, to a named beneficiary it has reference to ten per cent of the net or distributable part of the estate. Henderson v. Usher, 125 Fla. 709, 170 So. 846; Estate of Hinckley, 58 Cal. 457; Zimmer v. Gudmudsen, 142 Neb. 260, 5 N.W.2d 707; In re: Kirby Estate, 199 Cal. 135, 248 P. 517; Stark v. McEwen, 15 Ohio App. 188; Blakeslee v. Pardee, 76 Conn. 263, 56 A. 503; Smith v. Terry, 43 N.J. (Equity) 659, 12 A. 204; Barnett's Appeal. 104 Pa. State 342; Briggs v. Hosford, 22 Mass. (Pickering) 288." (p. 234.)

  5. St. Louis Union Trust Company v. Krueger

    377 S.W.2d 303 (Mo. 1964)   Cited 14 times
    In Krueger the court analyzed a single share whose deductible character would change under different contingencies, but here, as in Wahlin, we are faced with separate and distinct shares.

    Therefore, in the absence of an express direction on the part of the testatrix concerning the source of the money necessary to pay these charges, it is reasonable to assume and we conclude that she intended that they be paid from her gross estate, and that she further intended that the bequests be effective only as to that part of her gross estate over which she has the power or right to direct to whom it goes, which is the net or distributable estate remaining in the hands of her executors after the payment of the various charges imposed by law. See Estate of Kirby, 199 Cal. 135, 248 P. 517. No previous case in this state has been found ruling the precise issue here presented, but the conclusion and result we have reached is in accord with the cases we have found from other jurisdictions which have expressly considered the matter.

  6. WELLS v. MENN

    28 So. 2d 881 (Fla. 1947)   Cited 12 times
    In Wells v. Menn, 158 Fla. 228, 28 So.2d 881, 169 A.L.R. 892, a devise of ten percent of testator's estate was held to be ten percent of the net or distributable part of the estate.

    We approve the better rule which provides that when a testator devises ten per cent of his estate, or any fractional part thereof, to a named beneficiary it has reference to ten per cent of the net or distributable part of the estate. Henderson v. Usher, 125 Fla. 709, 170 So. 846; Estate of Hinckley, 58 Cal. 457; Zimmer v. Gudmudsen, 142 Nebr. 260, 5 N.W.2d 707; In re: Kirby Estate, 199 Cal. 135, 248 P. 517; Stark v. McEwen, 15 Ohio App. 188; Blakeslee v. Pardee, 76 Conn. 263, 56 A. 503; Smith v. Terry, 43 N.J. (Equity) 659, 12 A. 204; Barnett's Appeal. 104 Pa. State 342; Briggs v. Hosford, 22 Mass. (Pickering) 288. We find nothing in Murphy v. Murphy or In re: Bernays' Estate that conflicts with this rule; neither do we think it is in conflict with the statutes and cases relied on by appellants.

  7. American Fletcher National Bank & Trust Co. v. American Fletcher National Bank & Trust Co.

    161 Ind. App. 166 (Ind. Ct. App. 1974)   Cited 6 times

    (footnotes omitted) See: In re Kirby (1926), 199 Cal. 135, 248 P. 517; Bell v. Raymond (1850), 20 Conn. 337; Horsey v. Horsey (1857), Del., 1 Houst. 438; Wells v. Menn (1946), 158 Fla. 228, 28 So.2d 881; See also, Briggs v. Hosford (1839), Mass., 22 Pick. 288; Fisk v. McNeil (1837), Miss., 1 How. 535; Smith v. Terry (1888), 43 N.J. Eq. 659, 12 A. 204; Stark v. McEwen (1921), 15 Ohio App. 188; Barnett's Appeal (1884), 104 Pa. 342. Typical is Blakeslee v. Pardee (1903), 76 Conn. 263, 56 A. 503.

  8. Aronson v. Congregation Temple De Hirsch, of Seattle

    138 So. 2d 69 (Fla. Dist. Ct. App. 1962)   Cited 2 times

    "We approve the better rule which provides that when a testator devises ten per cent of his estate, or any fractional part thereof, to a named beneficiary it has reference to ten per cent of the net or distributable part of the estate. Henderson v. Usher, 125 Fla. 709, 170 So. 846; Estate of Hinckley, 58 Cal. 457; Zimmer v. Gudmundsen, 142 Neb. 260, 5 N.W.2d 707; In re Kirby's Estate, 199 Cal. 135, 248 P. 517; Stark v. McEwen, 15 Ohio App. 188; Blakeslee v. Pardee, 76 Conn. 263, 56 A. 503; Smith v. Terry, 43 N.J. Eq. 659, 12 A. 204; Barnett's Appeal, 104 Pa. 342; Briggs v. Hosford, 22 Pick. 288."