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In Re Estate of Leake

MARCH 20, 1969.

IN THE MATTER OF THE ESTATE OF CHARLES OLIVER LEAKE, DECEASED. JAMES LEAKE AND WILLIAM STEPHENSON, INDIVIDUALLY, AND AS EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF CHARLES OLIVER LEAKE, DECEASED, PLAINTIFFS-APPELLEES,

v.

JAMES A. MILLION, EDNA HAIGH, ALLIE WINCHESTER, THE SALVATION ARMY, OPAL STEPHENSON KING, ET AL., DEFENDANTS, JAMES A. MILLION, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Morgan County; the Hon. JOHN B. WRIGHT, Judge, presiding. Affirmed. TRAPP, P.J.

Defendants, James A. Million, Edna Haigh and Allie Winchester, who are the sole heirs of Charles Oliver Leake, testator, appeal from a decree of the Circuit Court, construing the will of the testator on complaint of the plaintiff executors, James Leake and William Stephenson.

In substance the will in question first left all property to the testator's wife, and then provided:

"Item FOUR: In the event my wife should predecease me, then and in that event I give and bequeath all the rest and residue of my estate to be divided as follows:

"To The Salvation Army, a one-seventh part;

"To Mollie Harney, a one-fourteenth part;

"To Minnie Young, a one-fourteenth part;

"To Charles Bramham, a one-seventh part;

"To Nettie Leake, a one-seventh part;

"To William Stephenson, a one-seventh part;

"To James Leake, a one-seventh part;

"To Opal Stephenson, a one-seventh part;

"In case of the death of MOLLIE HARNEY, MINNIE YOUNG, or either of them, then and in that event the share of the respective parties shall revert back to my residuary estate, and be divided equally among the remaining heirs of my estate. In case of the death of NETTIE LEAKE, JAMES LEAKE and OPAL STEPHENSON, their respective shares shall be distributed among the heirs of said decedents the same as they shall distribute their own estate."

The testator died July 17, 1964, leaving the will dated July 17, 1944, from which the foregoing excerpt is taken. None of the named beneficiaries were heirs of the testator. The testator's wife, and residuary beneficiaries, Mollie Harney, Minnie Young, Charles Bramham and Nettie Leake, all predeceased the testator. The existing residuary beneficiaries at the death of the testator were The Salvation Army, William Stephenson, James Leake and Opal Stephenson.

The deceased residuary beneficiary, Nettie Leake, died intestate and left descendants who survived the testator. The trial court entered a decree holding that the ...


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