Beebee's Estate, In re

• Decision Date: 01 July 1953
• Parties: In re BEEBEE'S ESTATE. RICHARDSON et al. v. BEEBEE et al. Civ. 15557.
• Court: California Court of Appeals Court of Appeals

Page 1101

258 P.2d 1101

118 Cal.App.2d 851

In re BEEBEE'S ESTATE.

RICHARDSON et al. v. BEEBEE et al.

Civ. 15557.

District Court of Appeal, First District, Division 1, California.

July 1, 1953.

Rehearing Denied July 31, 1953.

Hearing Denied Aug. 27, 1953.

Marvin C. Hix, San Francisco, for appellants.

Harry N. Grover and John F. O'Sullivan, San Francisco, Weinmann, Rode, Burnhill & Moffitt, Oakland, for respondents.

BRAY, Justice.

Appellants appeal from an order revoking the probate of a certain will and codicil and admitting to probate as the last will of decedent a certain writing in letter form. ¹

Question.

Basically, does the evidence support the finding that this letter was intended by decedent to be her will?

Record.

Sarah Agusta Beebee died June 16, 1950. Thereafter a document dated April 26, 1944, and one dated July 8, 1947 (the latter holographic in character) were admitted to probate as the last will and testament and codicil of said decedent. Subsequently, a petition for revocation of probate of said will and codicil and probate of the letter in question was filed by Robert A. Beebee. Ralph A. Beebee, Jr., petitioned separately for the revocation of probate of the will and codicil. Appellants filed objections to both petitions. The court found that the letter was intended to be and was the last will of decedent, admitted it to probate, and revoked the probate of the prior will and codicil.

Evidence.

There is no conflict in the testimony, the claimed conflict being in the inferences to be drawn therefrom and in the construction of the letter. Decedent was a woman 89 years of age, growing blind, and while in good health, was not strong. She had one son, Ralph A. Beebee, who predeceased her by two days, and two grandsons, Ralph A. Beebee, Jr., the child of Ralph Sr. and his first wife, and Robert A. Beebee, a minor, the son of Ralph Sr. and his second wife, who after her divorce remarried and is Mrs. Irene Meniktos. Ralph Jr. disappeared around 1930, was never afterwards heard of by decedent, and was disinherited. Decedent had deposited with the Wells Fargo Bank and Union Trust Co., the executor and trustee under the will and codicil originally admitted to probate, a will made in 1940. On April 26, 1944, Mr. Falconer, one of the attorneys for the bank, drew a will for decedent which she executed. This will left a piano to her grandson Robert, and the rest of her furniture to her son Ralph Sr. The rest of her estate was to be converted into cash, an endowment policy for $500 on Robert's life to be purchased, and the balance used to procure a life annuity for Ralph Sr. In the event of his death, prior to the purchase of the annuity, the estate was to go to Bertha Richardson, Ralph Sr.'s wife by his first marriage, Evelyn Jacobs, a protegee, Elizabeth B. Snell, Lillian James Larson and Josephine Woolf, intimate friends. This will was deposited with the bank. From time to time the trust department sent out notices to decedent, as well as others, to look over their present wills to see if they desired to make changes. On July 3, 1947, decedent drew a codicil dated that day, which read, 'I, Sarah A. Beebee, bequeath to my grandson, Ralph Augustus Beebee, $10.00.' It was signed by her. This she sent Mr. Falconer in a letter in which she asked if it could be legally attached to her will, and if not what she could do to make it legal. July 7th Mr. Falconer wrote her to the effect that the proposed codicil was legal but suggested that in view of the reasons she had given in her letter for limiting her grandson Ralph Jr. to only $10, she sign a codicil which contained a 'non-contest clause,' form of which he enclosed. He suggested that if she could not come to his office she copy the form in her own handwriting. This she did, dated it July 8th, and sent it to be, and it was, deposited with the bank. According to Mrs. Snell, a close friend of decedent, when decedent had anything to write that was important, she would first write a draft of it, then rewrite it, sometimes making minor changes. She would keep the first draft as a copy. She also told Mrs. Snell many times, even as late as within two weeks of her death, that she would be afraid to make a will without an attorney's advice. Prior to 1950 Ralph Sr., having been divorced from his second wife, returned to live with decedent in the home which she owned. In March, 1950, Ralph Sr. was engaged in the contracting business and needed money. Decedent had given him all she could to help him, and through him, had put her property up for sale so as to get more money for him. The sale did not go through. About March 14th, Mr. Scott received the following letter (exhibit 1):

'No. 1318-43rd Ave San Francisco Mar 11th 1950

Wells Fargo Bank and Union Trust Company

Market at Montgomery St. San Francisco

Mr. Robert T. Scott

Manager Estate Planning Division

Dear Mr. Scott:

Conditions have changed making it desirable that I revoke all former wills and codicils made by me, and wish to leave my entire estate to my son, Ralph Agustus Beebee without reservations. I am 89 years old, Helpless and growing blind. Please help me either to add a new codicil or to make a new will

Sarah Agusta Beebee

dated Mar 11th 1950'

On that day Scott phoned decedent. She stated that she wanted someone from the bank to come out as it was difficult for her to get downtown because of her condition. Scott told her the bank could not help her, that what she needed was an attorney, that the bank's records showed Mr. Falconer to be her attorney, and suggested she either phone him or some other attorney, or, if she desired, Scott would send the letter to Falconer and have him phone her. At her request he phoned Falconer. Scott said Falconer called her. Falconer testified that he is not sure whether or not he had any telephone conversation with decedent. He has no recollection of one. She did not come to his office.

She died approximately three months after the date of exhibit 1 (the letter above quoted). On the day of her death, one of the bank's employees found among other papers at her home petitioner's exhibit 2, which he delivered to the bank. This reads:

'No 1318-43rd Ave

San Francisco, California March 13th 1950

Wells Fargo Bank & Union Trust Co.

Market at Montgomery St, San Francisco

Mr. Robert T. Scott

Manager Estate Planning Division

Dear Mr. Scott

I wish to revoke all former wills & codicils to wills made by me as conditions no longer no longer exist, as at that time I wish to leave my entire Estate to my Son Ralph Agustus Beebee without reservation.

Sarah Agusta Beebee

I am eighty nine years old and growing blind, and not able to get down town to the bank. So please do what is necessary under the circumstances, whether by codicile or a new will.

Sincerely

Sarah A Beebee'

It is conceded that the date as originally written was '13th.' Decedent then wrote over the figure 3 either a line or the figure 1. This is the document the court has now admitted to probate.

Is Exhibit 2 A Will?

Respondents contend that the correct date of Exhibit 2 is March 18th. They further contend that after decedent heard from Scott in reply to her letter of March 11th, and also from Falconer, decedent wrote exhibit 2, first mistaking the date for March 13th and then by drawing a line through it, changing the date to the 18th; that in writing the document she intended the part above her first signature to be her will. The court so found both as to date and intent.

Appellants contend that the correct date of exhibit 2 is March 11th, that it is the first draft of exhibit 1, and that there is no evidence that defendant ever intended exhibit 2 to be a will.

It might be well to determine the scope of our review in a case of this kind. If there is a conflict in the evidence bearing on the question of decedent's intent as to exhibit 2, or in the reasonable inferences to be drawn therefrom, we are bound by the trial court's determination of that conflict. But if there is no evidence on the subject, and the determination of whether exhibit 2 constitutes a will is to be made solely from that instrument, or if there is no conflict in the evidence and the inferences therefrom, we are not bound by the trial court's interpretation and can make our own interpretation. Estate of Platt, 21 Cal.2d 343, 131 P.2d 825.

'While it is true that courts will not make a will for a decedent who has failed to do so for himself, it is also true that the law favors testacy rather than intestacy, and will give such construction to instruments bearing the character of wills as is necessary to carry out testamentary intent. They will also examine facts and circumstances surrounding its execution, to the end that the intent of the maker of the paper may be discovered.' Estate of Spitzer, 196 Cal. 301, 305-306, 237 P. 739, 741.

If exhibit 2 is dated the 11th there is no evidence or reasonable inference therefrom that decedent intended it as a will. She had drawn two formal wills and one codicil. (This codicil was complete in itself and was not in the form of a letter.) She was in the habit of writing out a rough draft of any important paper and then rewriting and correcting it, and keeping the original as a copy. She stated that she would not attempt to make a will without a lawyer's advice. Her letter sent with the codicil and the substance of exhibits 1 and 2 confirm this. She kept her testamentary papers at the bank. Exhibit 1 is a condensation of exhibit 2. Although she was becoming blind, her careful habit in writing a finished product makes it doubtful that she would leave as a final form a document containing the repetitious 'no longer no longer.' The form of the writing itself is that of a letter. It is addressed to the bank and concludes 'Sincerely.'

But, say respondents, the fact that it bears the date of the 18th is shown in two ways (1) by the fact that she must have been advised by Attorney Falconer about that...