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.
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.
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."
"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.)
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.
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.
(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.
"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."