Cuneo's Estate, In re

• Decision Date: 05 August 1963
• Citation: 60 Cal.2d 196,384 P.2d 1,32 Cal.Rptr. 409
• Court: California Supreme Court
• Parties: , 384 P.2d 1, 7 A.L.R.3d 1132 In re ESTATE of Carollna CUNEO, Deceased. Andrew CUNEO, Plaintiff and Appellant, v. Clara MONDANI et al., Defendants and Appellants. Sac. 7348.

Page 409

32 Cal.Rptr. 409

60 Cal.2d 196, 384 P.2d 1, 7 A.L.R.3d 1132

In re ESTATE of Carollna CUNEO, Deceased.

Andrew CUNEO, Plaintiff and Appellant, v. Clara MONDANI et al., Defendants and Appellants.

Sac. 7348.

Supreme Court of California, In Bank.

Aug. 5, 1963.

Robert A. Zarick and Thomas A. Wahl, Sacramento, for plaintiff and appellant.

Gard Chisholm, Schaber & Cecchettini, Horace E. Cecchettini, Sheldon H. Grossfeld, Wilke, Fleury & Sapunor and Joe S. Gray, Sacramento, for defendants and appellants.

PEEK, Justice.

Multiple appeals are taken from a judgment admitting to probate a 1956 holographic will of Carolina Cuneo, deceased.

When Carolina died in 1958 she left surviving her six children: Julia Cuneo, Clara Mondani, Sarah Carboni, Louise Varni, Suzanne Dobbert and Andrew Cuneo. Her estate, appraised at $67,698.98, consisted primarily of farm properties, livestock, and cash deposits. Beginning in 1943 she made four successive wills, three of which have been offered for probate. With one exception the testamentary writings are holographic and written in Italian. They provide generally as follows:

(1) A 1943 will, not offered for probate, made specific gifts ($500) to each of her four children except Julia and Clara and to one grandchild, and left the residue to Julia and Clara.

(2) A 1951 will again made specific gifts ($25) to the same persons and provided for the residue to be divided between Julia and Clara in a manner specified. Clara was designated as executrix, and was to live with, care for and manage the affairs of Julia 'when Guilia (Julia) comes home from the hospital.' It appears that at all times herein mentioned Julia was an incompetent and a patient in a mental hospital.

(3) A 1954 will, prepared by an attorney, revoked 'all wills by me heretofore made.' A specific bequest of $500 was made to a former daughter-in-law, and the residue was set aside for Julia until her death or her marriage, at which time it was to be distributed equally to all of the deceased's children and the grandchild mentioned in prior wills. Angelo De Paoli, another attorney, was designated as executor.

(4) A 1956 testamentary document, decedent's last, provided as follows:

'October 15, 1956

'I, Carolina Cuneo, add this to my will. Upon my death my daughter, Clara, is to take my place and act in my stead as if it were I. I strongly recommend Guilia to her. She and Clara will be the owners of everything I possess. While they live no one will be able to disturb them.

'I sign myself Carolina Cuneo, nee Carolina Poggi.

'My will is in the possession of De Paoli. After my death Clara will be the manager because Guilia is not good at managing. She is to take my will from De Paoli and pay whatever is to be paid.

'I sign myself Carolina Cuneo.'

A second translation of the foregoing document, submitted in evidence, varies the wording in minor respects only.

In 1957 De Paoli, who had possession of the 1954 will, surrendered it to Henry Mondani, Clara's husband, at decedent's request. The will was delivered to decedent who stated that 'this is not what I want,' and that she intended to burn it. The original will was not found. However a copy thereof was identified and introduced into evidence.

The 1956 instrument, when found with the 1951 will among decedent's valuable papers, contained penciled strike outs of the phrases 'my will is in the possession of De Paoli,' and 'take my will from De Paoli.'

Following decedent's death her daughter Sarah first petitioned for letters of administration, alleging that her mother died intestate. The litigation thereafter developed in the following order: Clara filed the 1951 holographic will and petitioned for probate thereof; Andrew filed a contest of the 1951 will; Clara filed the 1956 instrument, alleging it to be a codicil to the 1951 will and petitioned for probate of the two instruments together; Andrew filed a contest of the two instruments; De Paoli petitioned for probate of the 1954 will, alleging the 1956 instrument to be a codicil thereof, and opposing the other petitions; Andrew filed a contest of the 1954 will and alleged codicil.

After trial of the consolidated causes the court found that the 1951 will had been revoked by the general revocation clause of the 1954 will; that the 1954 will was destroyed by decedent with intention to revoke, and was so revoked; that it was the decedent who made modifications to the 1956 instrument, and as modified it was intended by decedent to remain in effect; that it was testamentary in character and was legally sufficient to stand by itself. The court concluded and ordered that the 1956 instrument alone be admitted to probate and that Clara be appointed administratrix with will annexed.

Turning first to Andrew's appeal it is his contention that since the 1956 instrument was intended only as a codicil, and since '(t)he revocation of a will revokes all its codicils' (Prob.Code, § 79), it was therefore revoked by reason of the destruction of the 1954 will, and hence his mother died intestate.

De Paoli, who also appeals, contends that the 1956 instrument was originally intended as a codicil to the 1954 will; that the 1954 will was later destroyed and revoked only under the mistaken belief that the 1956 instrument could be given effect as a testamentary instrument standing alone. He argues further that the 1956 instrument could not, by itself, be given the effect intended by the testatrix because the pretermitted heir statute (Prob.Code, § 90) requires that the estate be distributed in part to those children not mentioned in the 1956 instrument. It is his conclusion that the doctrine of dependent relative revocation requires the revival of the 1954 will, and it should be probated as modified by the 1956 codicil.

Finally there is the appeal by Clara Mondani who also relies on the doctrine of dependent relative revocation. It is her contention that the 1951 will, revoked by the 1954 will, was revived by operation of the doctrine when the 1954 will was revoked and the decedent made modifications to the 1956 codicil.

It is apparent that all contentions raised herein relate, in one manner or another, to the propriety of the trial court's conclusion that the 1956 instrument became a self- contained will upon modifications thereto and the revocation of the 1954 will.

We cannot disregard the trial court's finding that the decedent intended the republished codicil to be her sole testamentary instrument. The modifications of the original instrument evidence a desire to divorce it from the 1954 will, and her revocation of the latter must be deemed in aid of her intention that the 1956 instrument stand alone. Although there is no direct evidence that the decedent destroyed her 1954 will, other substantial evidence supports such a conclusion. Similarly, there is no direct evidence as to who made the changes in the 1956 instrument, but where changes and alterations are made in a holographic will in the possession of the testatrix, the inference is that they were made by her. (Estate of Stickney, 101 Cal.App.2d 572, 575, 225 P.2d 649.) Cancellations, modifications and interlineations made in a testator's hand in a holographic will do not render it invalid. Rather, they become a part thereof. (Estate of Finkler, 3 Cal.2d 584, 600, 46 P.2d 149.)

Manifestly, the document is testamentary in character, and while it may have lost something in its translation and perhaps is inexpertly drawn, nevertheless it appears to be sufficiently clear on its face as to decedent's intentions to render them ascertainable and thus avoid intestacy. '* * * (T)he rule is well settled that where the construction given to an instrument by a trial court is reasonable and appears to be consistent with the intent of the party making it, courts of appellate jurisdiction will not substitute another interpretation, even though it may seem equally tenable with that accorded by the trial court.' (Estate of Northcutt, 16 Cal.2d 683, 690, 107 P.2d 607, 611.)

The contention herein urged by Andrew that the 1956 instrument must fall under section 79 of the Probate Code because, as a codicil, the will to which it related was revoked, is not tenable. As a codicil the statute would have required its revocation with that of the will heretofore determined to have been revoked on substantial evidence. But merely because it was intended as a codicil when first published does not compel its continuance as such. A document, originally a codicil, which is a complete testamentary instrument in all respects is not dependent upon the continued existence of its basic will to retain its testamentary character. (Estate of Benson, 62 Cal.App.2d 866, 870, 145 P.2d 668.) Where the document satisfies the legal requirements of a testamentary instrument the discernable intent of the testator as to which instrument or instruments constitute the final testamentary expression must govern. (Estate of Danford, 196 Cal. 339, 342, 238 P. 76; Prob.Code, § 101.) For reasons heretofore set out we are persuaded that the trial court properly concluded that the decedent intended her 1956 instrument to continue in effect as her final testamentary expression after revocation of the 1954 will.

We are aided to the foregoing conclusion by the established rule that a will must be construed according to the intention of the testator and that effect must be given to the expressed intention so far as possible to avoid intestacy. (Estate of Heard, 25 Cal.2d 322, 326, 153 P.2d 553; Prob.Code, § 102.)

As previously noted De Paoli and Clara Mondani urge divergent views as to the effect of the application of the doctrine of dependent relative revocation when applied to the facts of the present case. 'Under the doctrine * * * an earlier will, revoked only to give effect to a later one on the supposition that the later one will become effective, remains in effect to the extent that the latter proves ineffective. (C...