Appellant's second query presents the principal question, — viz., Is the appellant entitled to the payment of twenty dollars per month from the date of the death of the testatrix?
The intention of the testatrix must be ascertained "from the words of the will, taking into view the circumstances under which it was made." (Civ. Code, sec. 1318) The finding of the court that appellant for many years prior to 1899 was, and still is, "a confirmed cripple," and "for many years prior to 1899," and until and including the month of September of that year, had received from the testatrix said sums monthly, would very clearly indicate that they were intended for the maintenance wholly or partial of the appellant. Said will was made December 13, 1898, and the testatrix died September 27, 1899, so that the condition of the appellant, as well as the periodic payments or contributions, are shown to have existed for years before the will was made, and were continued thereafter by the testatrix until her death. These facts do not justify the conclusion that said provision was not a legacy for maintenance.
Section 1369 of the Civil Code provides: "Legacies bear interest from the time when they are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease." This section was construed and applied in the case of In re Mackay, 107 Cal. 303, where the provision of the will creating the trust was identical with the provision in this case, except that it gave to the beneficiary the whole of the "income" from the trust fund. In that case the will did not declare that the trust was for the maintenance of the beneficiary, but, construed in the light of the evidence that the testator had for a long time supported the beneficiary, it was held to be a trust for maintenance, and that a fair construction of sections 1368 and 1369 of the Civil Code required the court to distribute to the trustees the accrued interest upon it to the date of distribution and be paid by them to the beneficiaries "as income accrued at that date." In this case the petitioner prayed for the distribution to the trustees not only of the trust fund of five thousand dollars, but also of the interest on that sum from the date of the death of the testatrix. The court distributed said sum to the trustees, but refused to distribute the interest which accrued from *Page 457 that sum from the date of the death of the testatrix to the date of distribution. In this conclusion the court erred. The direction to the trustees to invest said fund and to pay out of the income the specified sum at specified intervals must be read and construed in the light of section 1369 of the Civil Code, which declares that "legacies for maintenance, or to the testator's widow, bear interest from the testator's decease." There is no conflict between this provision of the will and said provision of the code, for the trustees cannot invest the money until it is distributed, while the code provides for the necessities of the beneficiary from the time the benefactor's hand is stayed by death to the time when the law, by its distribution of the fund, enables the trustees to execute the trust. It is true the money could not usually be paid by the trustees during this interval, but it would nevertheless, be available to the beneficiary as a basis of credit. The provision in the will that her executors should not be charged with interest upon any bequest does not affect our conclusion. These monthly payments of twenty dollars are paid from funds of the estate distributed to the executors. The bequest of five thousand dollars to the trustees, from the income of which the monthly payments to the beneficiary are to be made, bears interest from the death of the testatrix by force of the statute, when it is shown that the income therefrom is for maintenance. There were more than twenty other money legacies in the will to which this provision properly applies.
We advise that the said order, so far as appealed from, be reversed, with directions to distribute to said trustees the further sum of twenty dollars for each and every month from the date of the death of the testatrix, with direction that they forthwith pay the same to the said petitioner, and thereafter to pay to her monthly the income from said bequest to said trustees, not exceeding said sum of twenty dollars per month, during her natural life.
Smith, C., and Gray, C., concurred. *Page 458