Estate of Russell, In re

• Decision Date: 19 August 1968
• Citation: 70 Cal.Rptr. 561,69 Cal.2d 200,444 P.2d 353
• Court: California Supreme Court
• Parties: , 444 P.2d 353 In re ESTATE of Thelma L. RUSSELL, Deceased. Georgia Nan Russell HEMBREE, Plaintiff and Appellant, v. Chester H. QUINN, Defendant and Respondent. L.A. 29418.

Page 561

70 Cal.Rptr. 561

69 Cal.2d 200, 444 P.2d 353

In re ESTATE of Thelma L. RUSSELL, Deceased.

Georgia Nan Russell HEMBREE, Plaintiff and Appellant, v. Chester H. QUINN, Defendant and Respondent.

L.A. 29418.

Supreme Court of California,

In Bank.

Aug. 19, 1968.

Higgs, Jennings, Fletcher & Mack, Vincent E. Whelan, Gerald J. O'Neill, Joel C. Estes and Donald R. Lincoln, San Diego, for plaintiff and appellant.

McInnis, Focht & Fitzgerald and James L. Focht, Jr., San Diego, for defendant and respondent.

SULLIVAN, Associate Justice.

Georgia Nan Russell Hembree appeals from a judgment (Prob.Code, § 1240 ¹) entered in proceedings for the determination of heirship (§§ 1080--1082) decreeing inter alia that under the terms of the will of Thelma L. Russell, deceased, all of the residue of her estate should be distributed to Chester H. Quinn.

Thelma L. Russell died testate on September 8, 1965, leaving a validly executed holographic will written on a small card. The front of the card reads:

'Turn the card

March 18--1957

I leave everything

I own Real &

Personal to Chester

H. Quinn & Roxy Russell

Thelma L. Russell'

The reverse side reads:

'My ($10.) Ten dollar gold

Piece & diamonds I leave to Georgia Nan Russell.

Alverata, Geogia (sic).'

Chester H. Quinn was a close friend and companion of testatrix, who for over 25 years prior to her death had resided in one of the living units on her property and had stood in a relation of personal trust and confidence toward here. Roxy Russell was testatrix' pet dog which was alive on the date of the execution of testatrix' will but predeceased her. ² Plaintiff is testatrix' niece and her only heir-at-law.

In her petition for determination of heirship plaintiff alleges, inter alia, that 'Roxy Russell is an Airedale dog'; ³ that section 27 enumerates those entitled to take by will; that 'Dogs are not included among those listed in * * * Section 27. Not even Airedale dogs'; that the gift of one-half of the residue of testatrix' estate to Roxy Russell is invalid and void; and that plaintiff was entitled to such one-half as testatrix' sole heir-at-law.

At the hearing on the petition, plaintiff introduced without objection extrinsic evidence establishing that Roxy Russell was testatrix' Airedale dog which died on June 9, 1958. To this end plaintiff, in addition to an independent witness, called defendant pursuant to former Code of Civil Procedure section 2055 (now Evid. Code, § 776). Upon redirect examination, counsel for Quinn then sought to introduce evidence of the latter's relationship with testatrix 'in the event that your Honor feels that there is any necessity for further ascertainment of the intent above and beyond the document.' Plaintiff's objections on the ground that it was inadmissible under the statute of wills and the parol evidence rule 'because there is no ambiguity' and that it was inadmissible under section 105, were overruled. Over plaintiff's objection, counsel for Quinn also introduced certain documentary evidence consisting of testatrix' address book and a certain quitclaim deed 'for the purpose of demonstrating the intention on the part of the deceased that she not die intestate.' Of all this extrinsic evidence only the following infinitesimal portion of Quinn's testimony relates to care of the dog: 'Q (Counsel for Quinn) Prior to the first Roxy's death did you ever discuss with Miss Russell taking care of Roxy if anything should ever happen to her? A Yes.' Plaintiff carefully preserved an objection running to all of the above line of testimony and at the conclusion of the hearing moved to strike such evidence. Her motion was denied.

The trial court found, so far as is here material, that it was the intention of testatrix 'that CHESTER H. QUINN was to receive her entire estate, excepting the gold coin and diamonds bequeathed to' plaintiff and that Quinn 'was to care for the dog, ROXY RUSSELL, in the event of Testatrix's death. The language contained in the Will concerning the dog, ROXY RUSSELL, was precatory in nature only, and merely indicative of the wish, desire and concern of Testatrix that CHESTER H. QUINN was to care for the dog, ROXY RUSSELL, subsequent to Testatrix's death.' ⁴ The court concluded that testatrix intended to and did make an absolute and outright gift to Mr. Quinn of all the residue of her estate, adding: 'There occurred no lapse as to any portion of the residuary gift to CHESTER H. QUINN by reason of the language contained in the Will concerning the dog, ROXY RUSSELL, such language not having the effect of being an attempted outright gift or gift in trust to the dog. The effect of such language is merely to indicate the intention of Testatrix that CHESTER H. QUINN was to take the entire residuary estate and to use whatever portion thereof as might be necessary to care for and maintain the dog, ROXY RUSSELL.' Judgment was entered accordingly. This appeal followed.

Plaintiff's position before us may be summarized thusly: That the gift of one-half of the residue of the estate to testatrix' dog was clear and unambiguous; that such gift was void and the property subject thereof passed to plaintiff under the laws of intestate succession; and that the court erred in admitting the extrinsic evidence offered by Quinn but that in any event the uncontradicted evidence in the record did not cure the invalidity of the gift.

We proceed to set forth the rules here applicable which govern the interpretation of wills.

First, as we have said many times: 'The paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.' (Estate of Wilson (1920) 184 Cal. 63, 66--67, 193 P. 581, 582.) ⁵ The rule is imbedded in the Pro bate Code. (§ 101.) ⁶ Its objective is to ascertain what the testator meant by the language he used. ⁷

When the language of a will is ambiguous or uncertain resort may be had to extrinsic evidence in order to ascertain the intention of the testator. ⁸ We have said that extrinsic evidence is admissible 'to explain any ambiguity arising on the face of a will, or to resolve a latent ambiguity which does not so appear.' (Estate of Torregano (1960) 54 Cal.2d 234, [69 Cal.2d 207] 246, 5 Cal.Rptr. 137, 144, 352 P.2d 505, 512, 88 A.L.R.2d 597 citing § 105.) ⁹ A latent ambiguity is one which is not apparent on the face of the will but is disclosed by some fact collateral to it. (See 4 Page on Wills (Bowe-Parker Rev.) § 32.7, p. 255; Comment: Extrinsic Evidence and the Construction of Wills in California (1962) 50 Cal.L.Rev. 283, 284--291).

As to latent ambiguities, this court in the Donnellan case said: 'Broadly speaking, there are two classes of wills presenting latent ambiguities, for the removal of which ambiguities resort to extrinsic evidence is permissible. The one class is where there are two or more persons or things exactly measuring up to the description and conditions of the will, * * *. The other class is where no person or thing exactly answers the declarations and descriptions of the will, but where two or more persons or things in part though imperfectly do so answer.' (Estate of Donnellan (1912) 164 Cal. 14, 20, 127 P. 166, 168.) ¹⁰ Extrinsic evidence always may be introduced initially in order to show that under the circumstances of a particular case the seemingly clear language of a will describing either the subject of or the object of the gift actually embodies a latent ambiguity for it is only by the introduction of extrinsic evidence that the existence of such an ambiguity can be shown. Once shown, such ambiguity may be resolved by extrinsic evidence. (Estate of Dominici (1907) 151 Cal. 181, 184, 90 P. 448; Taylor v. McCowen (1908) 154 Cal. 798, 802, 99 P. 351; Estate of Donnellan, supra, 164 Cal. 14, 20, 22--24, 127 P. 166; cf. Estate of Sargavak (1953) 41 Cal.2d 314, 320, 259 P.2d 897; Estate of Carter (1956) 47 Cal.2d 200, 207--208, 302 P.2d 301.)

A patent ambiguity is an uncertainty which appears on the face of the will. (Estate of Womersley (1912) 164 Cal. 85, 87, 127 P. 645; Estate of Willson (1915) 171 Cal. 449, 456--457, 153 P. 927; Estate of Salmonski (1951) 38 Cal.2d 199, 214, 238 P.2d 966; see generally 4 Page on Wills, op. cit. supra, § 32.7, p. 255; Comment: supra, 50 Cal.L.Rev. 283, 284--291.) 'When an uncertainty arises upon the face of a will as to the meaning of any of its provisions, the testator's intent is to be ascertained from the words of the will, but the circumstances of the execution thereof may be taken into consideration, excluding the oral declarations of the testator as to his intentions.' (Estate of Salmonski, supra, 38 Cal.2d 199, 214, 238 P.2d 966, 975.) ¹¹ This is but a corollary derived from an older formalism. Long before Salmonski it was said in Estate of Willson, supra, 171 Cal. 449, 456, 153 P. 927, 930: 'The rule is well established that where the meaning of the will, on its face, taking the words in the ordinary sense, is entirely clear, and where no latent ambiguity is made to appear by extrinsic evidence, there can be no evidence of extrinsic circumstances to show that the testatrix intended or desired to do something not expressed in the will.' ¹² However, this ancient touchstone has not necessarily uncovered judicial material of unquestioned purity.

In order to determine initially whether the terms of Any written instrument are clear, definite and free from ambiguity the court must examine the instrument in the light of the circumstances surrounding its execution so as to ascertain what the parties meant by the words used. Only then can it be determined whether the seemingly clear language of the instrument is in fact ambiguous. 'Words are used in an endless variety of contexts. Their meaning is not subsequently attached to them by the reader but is formulated by the writer...