Utter v. Laymance

Citations

• 142 Cal. 453

Syllabus

<p>Estates of Deceased Persons—Will—Election between Devise and Indebtedness—Estoppel.—Where a devise was made in full satisfaction of any and all claims of the devisee against the testator for moneys loaned and services performed, the devisee was not estopped from claiming under the will by reason of the fact that she presented a claim against the estate, where such claim was presented in ignorance of the value of the property devised, and was allowed only in part, and was then withdrawn, and a written election made to take under the will.</p> <p>Id.—Sale under Deed of Trust—Surplus—Devise Subject to Contribution with Other Devises.—Where a sale of the land devised was made under a deed of trust, and a surplus remained, the devise made in payment of all indebtedness due from the testator to the devisee remains, as to such surplus, subject, along with other devises, to contribution for the payment of the debts and charges of administration. There is no exception in the statute on account of the nature of such devise.</p> <p>Id.—Partial Distribution—Amount not Ascertainable.—A decree of.partial distribution of such surplus proceeds to the assignee of the devisee must be reversed. The amount to be distributed under the devise is not ascertainable until after the settlement of the final account and by the decree of final distribution.</p>