Jasme v. Mercer

Beck, P. J. The controlling question in this case is whether a will made and executed by a person leaving a wife and child, the [259] provisions of which contain a bequest to certain charitable institutions, violated the provision of § 3851 of the Code, that “No person leaving a wife or child shall by will devise more than one third of his estate to any charitable . . institution, to the exclusion of such' wife or child.” The court below held, upon consideration of the petition and the demurrers thereto, that there was no violation of the section referred to; which is in effect a holding that the testator did not leave to charity more than one'third of his entire estate. Under the facts alleged in the petition, the court did not err in so holding, inasmuch as the court was authorized, in computing the amount left to the wife, to reduce to its present value the life-estate bequeathed to her. Judgment affirmed. All the Justices concur, except Russell, G. J., and Atkinson, who dissent.