Estate of O'Connell

• Decision Date: 20 December 1972
• Citation: 29 Cal.App.3d 526,105 Cal.Rptr. 590
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE of Elsie M. O'CONNELL, Deceased. Con S. SHEA, as Public Administrator, etc., Petitioner and Respondent, v. Martha ARNOLD, Claimant and Appellant; St. Brigid's Church, Claimant and Respondent. Civ. 31411.

Page 590

105 Cal.Rptr. 590

29 Cal.App.3d 526

ESTATE of Elsie M. O'CONNELL, Deceased.

Con S. SHEA, as Public Administrator, etc., Petitioner and Respondent, v. Martha ARNOLD, Claimant and Appellant; St. Brigid's Church, Claimant and Respondent.

Civ. 31411.

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

Dec. 20, 1972.

O'Donnell, Waiss, Wall & Meschke, Richard J. Wall, Elizabeth G. Leavy, San Francisco, for appellant.

John F. Duff, San Francisco, for respondent, St. Brigid's Church.

TAYLOR, Presiding Justice.

This is an appeal by an intestate heir from a portion of a probate decree determining that she had no interest in the estate of her deceased sister, Elsie O'Connell. The only question presented is whether the trial court properly held that the language of the holographic will bequeathing 'all remaining cash in my accounts' to respondent, St. Brigid's Church, included a $17,000 certificate of deposit. We conclude that the interpretation adopted by the trial court accords with the intention and objectives of the testatrix and should be affirmed.

The facts as found by the court are as follows: On July 18, 1968, Elsie O'Connell wrote a valid holographic will that, by the first 8 paragraphs, bequeathed specified sums of cash to several charitable and religious institutions, a piece of jewelry to each of two nieces, and the contents of her apartment to Mrs. Pietras. The will then continued: 'To St. Brigid's Church after all expenses and bequests have been paid all remaining cash in my savings and checking accounts at the Wells Fargo Bank, Grant and Market Sts. Also government bonds amounting to $1969.75 (one thousand nine-hundred sixty nine dollars and seventy-five cents) plus accrued interest.

'I would request that one hundred masses be said for the repose of the souls of Dennis and Elsie O'Connell Five hundred dollars be used for the above request.

'Signed

'Elsie M. O'Connell.

'Also to St. Brigid's Church the savings at Crocker Citizen's National Bank at Filmore and Chestnut.'

On March 8, 1968, about 4 months before she signed the holographic will, the testatrix changed the form of the major portion of her savings account at the Wells Fargo Bank by transferring $17,000 from that account to a certificate of deposit. This certificate, issued on March 8, 1968, was a non-negotiable term certificate that matured on September 8, 1968, with a provision for automatic renewal for successive periods of 3 months each. The certificate recited that it was non-transferrable, non-assignable and not subject to withdrawal prior to maturity, and provided for deposit of the 5 percent quarterly interest to the savings account.

At the time of Elsie O'Connell's death on July 10, 1969, the next maturity date for the certificate of deposit was September 8, 1969. Her estate was appraised at $32,145.93; the principal assets, in addition to the certificate, were the Wells Fargo Bank accounts (checking $1,844.42; savings $4,152.93), the Crocker Citizens savings account ($3,990.69), and U.S. Savings Bonds ($4,296.49). Her only heirs at law were the two nieces mentioned in the will and appellant. The holographic will dated July 18, 1968, was duly admitted to probate on August 14, 1969. Thereafter, the public administrator filed the instant petition for a determination of interest and interpretation of the will. The court found that by the language of paragraph 9, 'all remaining cash' in her accounts at Wells Fargo Bank, the testatrix intended to include in her bequest to St. Brigid's Church that portion of her savings on deposit evidenced by the $17,000 certificate of deposit. ¹ This appeal is from that portion of the ensuing order adverse to the interest of appellant, Martha Arnold.

Appellant correctly points out that the question is one of law. Since the record in the present case indicates that no extrinsic evidence was admitted, we must arrive at an independent interpretation of the will (Estate of Russell, 69 Cal.2d 200, 212, 70 Cal.Rptr. 561, 444 P.2d 353). The paramount rule in the construction of wills to which all other rules must yield is that the will is to be construed according to the intent of the testatrix as expressed therein and this intent must be given effect as far as possible (Prob.Code, § 101; Estate of Dodge, 6 Cal.3d 311, 324, 98 Cal.Rptr. 801, 491 P.2d 385). Further, as the will was a holographic one, it should be interpreted in a layman's sense (Estate of Henderson, 161 Cal. 353, 358, 119 P. 496). The entire document must be examined as a whole and the will cannot be interpreted without considering the circumstances surrounding its execution (Estate of Russell, supra, 69 Cal.2d pp. 208--211, 70 Cal.Rptr. 561, 444 P.2d 353).

As we said in Estate of Olsen, 9 Cal.App.2d 374, at page 379, 50 P.2d 70, at page 72: 'In construing said will, we must bear in mind that 'the very fact of making a will raises a presumption that the testatrix intended to dispose of all of her property.' (26 Cal.Jur. p. 899.) Whenever a disputed word or phrase may be reasonably given either of two meanings, that meaning should be given which will provent intestacy. While this rule is codified as to total intestacy (Probate Code, § 102), the principle is also applicable to avoid partial intestacy. (Citations.) In other words, constructions which lead to either total or partial intestacy are not favored. (Citations.) We must further bear in mind that technical words are not always to be taken in their technical sense when used in a will. A non-technical meaning may be given to such words where the will is drawn solely by the testatrix and it appears that she was not familiar with such technical terms. (Citations.)' Thus, where, by the terms of the will, it is not made clear that intestacy, either partial or whole, was intended, an interpretation which avoids intestacy will be adopted (Estate of Northcutt, 16 Cal.2d 683, 107 P.2d 607).

Appellant here argues that in essence, the word 'cash,' in its ordinary sense, means money or its equivalent, and should be so construed unless a different intent appears on the face of the will (Prob.Code, § 106). ² The presumption of technical meaning established by section 106 is subordinate to the dominant purpose of finding and effecting the intent of the testator; it is an aid to be used in ascertaining that intent, not a tool by which the court frustrates the testator's objectives. The testator's intent cannot be governed from the technical meaning of one phrase, but only from the will as a whole (Estate of Dodge, supra, 6 Cal.3d pp. 324--325, 98 Cal.Rptr. 801, 491 P.2d 385.)

In examining the entire holographic will of Elsie O'Connell, it is readily apparent that her general scheme and dominant purpose was to leave her estate for religious and charitable purposes as only the two rings and contents of her apartment (valued at $150) were not so bequeathed. Appellant, although a close blood relative, was not even mentioned. Once the testamentary scheme or general intention is discovered, the meaning of particular words and phrases is to be subordinated to this scheme, plan or dominant purpose (Estate of Hollingsworth, 37 Cal.App.2d 432, 99 P.2d 599).

Also, by the terms of the will, St. Brigid's Church was the chief beneficiary. That the testatrix intended that the balance of all her savings on deposit at the Wells Fargo Bank should go to St. Brigid's Church, rather than that half of her estate should devolve by partial intestacy to appellant, an unmentioned heir at law, is entirely consistent with the general scheme and dominant purpose in...