Estate of Geffene

• Decision Date: 06 November 1969
• Citation: 1 Cal.App.3d 506,81 Cal.Rptr. 833
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Louise GEFFENE, Deceased. Warren PORTER, Jr. and Nancy Porter Gray, Appellants, v. A. Loren BOADT, Catharine Smythe and Marian T. Rowans, Respondents. Civ. 34077.

Page 833

81 Cal.Rptr. 833

1 Cal.App.3d 506

In the Matter of the ESTATE of Louise GEFFENE, Deceased.

Warren PORTER, Jr. and Nancy Porter Gray, Appellants, v. A. Loren BOADT, Catharine Smythe and Marian T. Rowans, Respondents.

Civ. 34077.

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

Nov. 6, 1969.

Margolis & McTernan, John T. McTernan, Sol Scope, and Barry Nakell, Los Angeles, for appellants.

No appearance for respondents A. Loren Boadt and Catharine Smythe.

Joseph Marchetti, Los Angeles, and Edward L. Lascher, Ventura, for respondent Rowans.

LILLIE, Associate Justice.

Two documents, both in the handwriting of decedent, were offered by respondents for probate. The first, dated March 1, 1967, was admitted:

'March 1, 1967

15333 De Pauw

Pacific Palisades, California

The following statement I have preferred not to announce:

The stock certificates owned by me I transfer to Marian T. Rowans--

That these stocks remain secure for her.

These stocks are, Federated Stores Inc. and Boston Fund Inc.

This request is not to be changed, revised or contested but left intacked (sic). Respected due to my wishes.

Louise Geffene'

The second, dated June 25, 1967, ¹ was denied probate on the ground that decedent did not intend the instrument to take effect as her will but as instructions for a will to be drawn and executed in the future. Contestants Porter and Gray (nephew and niece of decedent) appeal from that portion of the judgment admitting to probate the holographic instrument dated March 1, 1967.

Decedent, over 80 years of age, was a devout Christian Scientist and bedridden much of the time; she was cared for by Christian Science nurses of whom respondent Rowans was the last. Mrs. Rowans started working for decedent on December 29, 1966, on the day, then the night shift and finally from March 15, 1967, on 24-hour duty residing in decedent's home.

Respondent Boadt, a practicing attorney and former house counsel for Bullock's had known decedent for many years. During early 1967, decedent's bank, fearful that she could no longer care for her own affairs, contacted the Winnett Foundation (organized to assist retired employees of Bullock's) which asked respondent Smythe, a social worker, to visit decedent. Mrs. Smythe discussed a conservatorship with decedent, who told her she wanted Mr. Boadt to act for her. Thus on February 21, 1967, Mr. Boadt received a request from the Winnett Foundation that he act as her conservator or guardian. He immediately communicated with appellant Porter (who in writing approved) and on March 7, 1967, visited decedent at which time she asked him to become her conservator. However, first she told him that she was a Christian Scientist and wanted to remain in her own home and under no circumstances would go to a hospital or see a doctor; he replied that this was satisfactory and asked if she had the ability to pay for care in her home; she answered, 'I think so.' They discussed her property; during this conversation Mrs. Rowans was not present. Thereafter on April 17, 1967, Mr. Boadt was appointed conservator; the next day in looking through her papers he found no stock certificates which he knew Mrs. Geffene possessed.

Sometime between April 18, 1967, and June 23, 1967, when visiting decedent, Mr. Boadt asked decedent, who was then lying in bed, where the stock certificates were; Mrs. Geffene reached under her mattress and pulled out two brown Manilla envelopes and handed them to him. He opened the envelopes and found therein the Federated Stores, Inc. (successor corporation of Bullock's, Inc.) and Putnam Fund stock certificates, counted them, then called in Mrs. Rowans and asked her to check and count for him, which she did. Mrs. Rowans did not know what the certificates were. At no time did decedent say anything to Mr. Boadt or Mrs. Rowans about transferring any stock to Mrs. Rowans.

Around June 15, 1967, Mr. Boadt received a letter from Mr. Porter, decedent's nephew, expressing concern over whether she had made a will. The next day Mr. Boadt read the letter to Mrs. Geffene and inquired if she had drawn a will; she did not reply. When he told her he thought she should have a will, she told him she would think about it; she did not mention the instrument dated March 1, 1967. Mrs. Rowans was not present at this conversation.

On June 26, 1967, Mr. Boadt received in the mail the document dated June 25, 1967 (probate denied). The same evening while going through the files of the conservatorship he discovered the March 1, 1967, instrument in one of the brown Manilla envelopes decedent had taken from under her mattress and handed to him and which contained one of the sets of stock certificates mentioned in the document. On June 30, 1967, Mr. Boadt went to see decedent. He showed her both documents (March 1, 1967, and June 25, 1967) and asked her if she wrote them; she answered, 'Yes.' He told her he could not comply with her request to 'draw this will up' contained in the June 25, 1967, document because it was incomplete, there being no provision for disposition of all of her property and no residuary clause. Mr. Boadt testified that he showed her both documents; 'she read both of them and I pointed out to her that her disposition of the first one (March 1, 1967) was only partial and the second one (June 25, 1967) was only partial but she had added additional assets. The problem remained the same on both.' He recommended she think about a more formal disposition and decedent asked, 'What is the matter with these documents?'; he responded that they were incomplete. She then asked, 'Is it legal?'; he told her that as a holographic document, in his opinion, it is legal but that she had not disposed of everything, if that is what she wished; she then asked what would happen if she did nothing and he told her that the remainder of her estate would go to her heirs subject to administration expenses. She said, 'I'll think about it.'

On July 7, 1967, Mr. Boadt again raised the issue of the preparation of a will and asked if she had given it more thought; she answered, 'Yes. Forget about it.' He again discussed her failure to dispose of all of her estate and the lack of a residuary clause; she wanted reaffirmation of what he had told her on June 30, thus he again told her that the balance of her estate would go to her heirs. Then she asked, 'Will that be the effect of these wills?' and he answered, 'Yes,'; she replied, 'Then leave it. Forget it,' which he understood to mean, 'She wants to leave what she has, in effect, in her own handwriting what she wanted.' Mrs. Rowans was not present at the time of this conversation. Decedent did not mention the subject again, and died September 27, 1967.

At the trial appellants claimed undue influence and that 'the documents do not show testamentary intent on their face and there has been no showing that the documents were executed with the intent that they, in fact, were to have testamentary effect.' ² On these issues the trial court found that the holographic instrument of March 1, 1967, was an effective will; decedent dated and executed the same with the intent that it should be her last will; and it was not obtained through the influence of Mrs. Rowans or anyone else and Mrs. Rowans did not know the instrument existed until after decedent's death.

The sole issue before us is whether the holographic instrument of March 1, 1967, meets the requirement of testamentary intent. In claiming that it does not, appellants point to certain language therein as denoting a present transfer rather than a testamentary gift and to decedent's characterization of the document as a 'statement.' Further, they ask this court to make an independent interpretation of the evidence and find that the purpose of the March 1, 1967, document was simply 'to secure (decedent's) ability to pay for nursing in her own home.'

Where the trial court's interpretation of a written instrument turns upon the credibility of conflicting extrinsic evidence admitted in aid thereof, we are bound by the interpretation reached by the court below (Parsons v. Bristol Development Co., 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839); however, this is not so if the trial court admitted no extrinsic evidence, made its determination upon incompetent evidence or acted upon evidence which was not in conflict. (Pierpont Inn, Inc. v. State of California, ^a 70 Cal.2d ---, --- 74 Cal.Rptr. 521, 449 P.2d 737; Estate of Russell, 69 Cal.2d 200, 213; Parsons v. Bristol Development Co., 62 Cal.2d 861, 865--866, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825; Estate of Darms, 247 Cal.App.2d 254, 257, 55 Cal.Rptr. 463.) While here extrinsic evidence was admitted, it was uncontradicted (even though subject to conflicting inferences (see Parsons v. Bristol Development Co., 62 Cal.2d 861, 866, fn. 2, 44 Cal.Rptr. 767, 402 P.2d 839)), thus this court has the responsibility of independently determining whether the March 1, 1967, instrument was executed with testamentary intent. (Parsons v. Bristol Development Co., 62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Wolfe, 260 Cal.App.2d 587, 591--592, 67 Cal.Rptr. 297; Estate of Kane, 236 Cal.App.2d 51, 53, 45 Cal.Rptr. 742.)

Before an instrument may be admitted to probate as a will, it must appear from its terms, viewed in the light of the surrounding circumstances, that it was executed with testamentary intent. (Estate of Sargavak, 35 Cal.2d 93, 95--96, 216 P.2d 850, 21 A.L.R.2d 307; Estate of Golder, 31 Cal.2d 848, 850, 193 P.2d 465; Estate of Wolfe, 260 Cal.App.2d 587, 593, 67 Cal.Rptr. 297; Estate of French, 225 Cal.App.2d 9, 15--16, 36 Cal.Rptr. 908.) The basic test of testamentary intent is not the testator's realization that he was making a will, but whether he intended by the particular instrument offered for probate to create a revocable disposition of his property to take effect only upon his...