Darms' Estate, In re

• Decision Date: 15 December 1966
• Citation: 247 Cal.App.2d 254,55 Cal.Rptr. 463
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Michael DARMS, Deceased. SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, a Colorado Corporation, Appellant, v. John LAWRENCE and Mac Clement, Petitioners and Respondents, United California Bank, a California Corporation, and John Lawrence, Respondents. Civ. 30068.

Page 463

55 Cal.Rptr. 463

247 Cal.App.2d 254

In the Matter of the ESTATE of Michael DARMS, Deceased.

SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, a Colorado Corporation, Appellant, v. John LAWRENCE and Mac Clement, Petitioners and Respondents, United California Bank, a California Corporation, and John Lawrence, Respondents.

Civ. 30068.

Court of Appeal, Second District, Division 2, California.

Dec. 15, 1966.

Hearing Denied Feb. 8, 1967.

J. Marion Wright and Owen E. Kupfer, Los Angeles, for appellant.

Mendelsohn, Haves & Miller, by Howard P. Miller, Beverly Hills, for respondent John Lawrence, an individual.

ROTH, Presiding Justice.

Shriners Hospitals for Crippled Children, a Colorado corporation, residuary legatee of the estate here involved, appeals from an order admitting to probate a letter entirely written, dated and signed by decedent as a codicil to a prior will.

Michael Darms, a railroad conductor, died on March 9, 1963. He had executed a formal will on March 14, 1957, when a resident of Salt Lake City, Utah. At the time of his death decedent was a resident of California. The formal will named Walker Bank and Trust Company, a Utah corporation, (Bank) as executor of his estate and trustee of a testamentary trust created in the will. The formal will was admitted to probate in California on June 11, 1963.

Bank could not qualify as executor or trustee. As a consequence John Lawrence and Mac Clement were appointed as administrators with-the-wll-annexed and United California Bank was named as trustee. An accounting was filed. Judgment approving and settling the first account and for preliminary distribution was signed and filed on January 28, 1965.

On or about November 21, 1961, decedent had dispatched a letter, which is the subject matter of this suit, to William J. Fitzpatrick, a trust officer of Bank, which was found in the files of Bank with decedent's formal will. The letter reads as follows:

'Hollywood 11/21/61

'Mr. Fitzpatrick

Dear Sir

In my will I left $3000.00 to Mr. John Lawrence of 1410 No. Stanley Ave. Hollywood 46.

Wish you would change that to read $15,000.00 instead of $3000.

Thanking you in advance wish to remain

Yours sincerely,

Michael Darms

1825 Cahuenga Blvd. Hollywood 28 Calif.'

On March 17, 1965, the administrators filed the letter for probate. Why the letter was not offered for probate at the time the formal will was offered is not explained by the record. No issue was raised because of this tardiness in the trial court and none is raised here.

The trial court found the letter to be entirely in decedent's own handwriting, '(t)hat the decedent intended by said document * * * to change and modify the terms of his Will * * *; that the decedent contemplated that such document could, by itself, effectuate the changes desired; that * * * (it) was executed by decedent with testamentary intent and was intended by him to be a Codicil to his said Will * * *.' The court admitted the document to probate and entered judgment accordingly.

The sole issue is the validity of the letter of November 21, 1961, as an holographic codicil.

The only evidence at the trial court was the letter itself, a stipulation of the fact that it was received by Bank, placed with the formal will in Bank's file, ¹ that decedent had some high school training and had been employed as a railroad conductor. There is no evidence that the decedent inherited any property and a proper inference is that his estate was compiled by his own efforts and acumen. The estate comprised approximately $120,000 in assets, with nominal liabilities. It is therefore fair to infer that the decedent had some business education and sophistication.

The burden of proof is on respondent to prove all the material allegations of his petition, whether denied or not.

We also accept appellant's contention for the purpose of this case that when the evidence is uncontradicted this court is not bound by the trial court's conclusion and that the interpretation of the validity of a letter as an holographic codicil is a judicial function which may be exercised by this court independently of a finding by the trial court.

In Parsons v. Bristol Development Co., 62 Cal.2d 861, at pages 865 and 866, 44 Cal.Rptr. 767, at page 770, 402 P.2d 839, at page 842, the court says:

'It is * * * solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence. Accordingly, 'An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence (citations), where there is no conflict in the evidence (citations) or a determination has been made upon incompetent evidence (citation).' (Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825, 830. Accord, Moore v. Wood, 26 Cal.2d 621, 629--630, 160 P.2d 772; Western Coal & Mining Co. v. Jones, 27 Cal.2d 819, 826--827, 167 P.2d 719, 164 A.L.R. 685; Estate of Wunderle, 30 Cal.2d 274, 280, 181 P.2d 874; Estate of Fleming, 31 Cal.2d 514, 523, 190 P.2d 611; Meyer v. State Board of Equalization, 42 Cal.2d 376, 381, 267 P.2d 287.)'

We start with the settled rule repeated in many cases and stated in the Estate of Lawrence, 17 Cal.2d 1, at p. 6, 108 P.2d 893, at p. 896, as follows:

'In the construction of wills the paramount rule, to which all others must yield, is that a will is to be construed according to the intention of the testator, as expressed therein, and his intention must be given effect as far as possible. (Citations.)'

We also accept the principle that it must appear from the face of the letter that it was intended by the decedent that the writing standing alone be a testamentary disposition of his property. (Estate of Sargavak, 35 Cal.2d 93, 95, 216 P.2d 850, 21 A.L.R.2d 307; Estate of Tillman, 136 Cal.App.2d 313, 315, 288 P.2d 892.)

Appellant argues that Mr. Darms had previously executed a formal will and was therefore presumably familiar with the procedure for its creation; his letter refers to his formal will ('in my will') and requests that Mr. Fitzpatrick, whose bank had physical possession of the will, 'change that to read $15,000.00 instead of $3000.' His closing, 'Thanking you in advance', is further indication that he contemplated necessary Further action before the modification would be effective; 'in advance' must mean in advance of Fitzpatrick's making the change in his will.

Appellant concludes that decedent recognized the need for modifying the original instrument in some way in order legally to effect the change and to keep it formally accurate and did not intend the letter itself to be the codicil.

Appellant relies heavily on Estate of Beebee, 118 Cal.App.2d 851, 258 P.2d 1101. In that case, the decedent wrote a letter to the trust officer of a bank named as executor. The letter, aside from the date and address, was in substance as follows:

'Dear Mr. Scott

'I wish to revoke all former wills & codicils to wills made by me as conditions no longer no longer (...