Holmes' Estate, In re

• Decision Date: 17 April 1961
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Ray G. HOLMES, Deceased. Civ. 25118.

Page 629

12 Cal.Rptr. 629

191 Cal.App.2d 285

In the Matter of the ESTATE of Ray G. HOLMES, Deceased.

Civ. 25118.

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

April 17, 1961.

Cavalletto, Webster, Mullen & McCaughey, George D. McKaig, Santa Barbara, for appellants.

Schramm, Raddue & Seed, Edward W. Schramm, Santa Barbara, for respondent.

FOURT, Acting Presiding Justice.

This is an appeal from a decree which determined the interests in the above entitled estate.

Ray G. Holmes, hereinafter referred to as decedent, signed a document consisting of nine typewritten pages, dated March 22, 1956, entitled 'Last Will and Testament of Ray G. Holmes' and such document will be hereinafter referred to as the March instrument. It was obviously prepared by someone who was familiar with the drafting of wills and trusts. The cover or backing of that instrument sets forth thereon the following: 'Last Will and Testament--Ray G. Holmes--Dated March 22, 1956--Elbert L. Mikesell Attorney at Law, Grants Pass, Oregon.' By such March instrument the decedent generally devised certain designated property located in California to the Bank of America in trust and generally provided therein for three income beneficiaries (his mother, a cousin and a niece). The instrument also provided for five remainder beneficiaries who were named and further, in legalistic language, revoked any and all other wills, codicils or testaments theretofore made.

In paragraph 'Second' of the March instrument certain mentioned properties supposedly in Ventura County (the property was actually in Santa Barbara County) were given to the Bank of America in trust and in paragraph 'Third' certain other property was also given to the bank in trust. There were no other specific gifts, devises or bequests. Paragraph 'Fourth' contains the plan, uses and purposes of the trust and provision is made for the three income beneficiaries, namely, the mother, a cousin and a niece of the testator. The instrument also provides for five named remainder beneficiaries who are to share equally in the distribution of the principal and the remaining income of the trust after the death of the last survivor of the three income beneficiaries.

On December 31, 1957 the decedent, on the reverse side of what appears to be a carbon copy of the typewritten part of page nine of the March instrument, executed a codicil, holographic in form, as follows:

'Date December 31st 1957

Time 9:45 A M.

Name of Last Beneficiary

IZORA H. PFLUG

Izora H Pflug

Knowing to be my wife after my divorce is final--Aug 1-1958 To the Law of God I will all my property & Security to said person Izora H. Pflug.

Written this Time 9:57 A M

Ray G. Holmes' (Emphasis added.)

It is to be noted that apparently decedent had possession of a carbon copy of the March instrument backed with a blue cover upon which there was printed 'Elbert L. Mikesell, Attorney at Law, U. S. National Bank Building, Grants Pass, Oregon.' Several of the pages (namely pages 1, 2, 3, 4 and 9) show cross-outs and words written in the margin. The court in a previous proceeding admitted the two written instruments, namely the instrument of March 22, 1956 and the codicil bearing date of December 31, 1957 heretofore set forth as the last will and testament of Ray G. Holmes. The order admitting will to probate and for letters testamentary was signed on May 5, 1958. No mention is made in that order of the first eight pages of what appears to be the carbon copy of the will with the notations and cross-outs written thereon. In fact, the court in a proceeding at a later date, ordered in effect that the first eight pages of the copy of the will were not to be a part of the record on appeal.

The only question before the court at the time of the hearing on the petition for probate of the formal will (which petition represented that the will consisted of the two documents heretofore mentioned) was whether the documents constituted a will. It is apparent that the two documents were admitted to probate because both had been duly executed, and the codicil as the later instrument contained no express revocation clause in indication of the testator's intent that no effect was to be given to the earlier instrument. Estate of Brodersen, 102 Cal.App.2d 896, 906, 229 P.2d 38.

Nothing was before the court with reference to the construction of a will, if any, nor were inconsistencies, if any, in the disposition of any property considered. That procedure was proper and that determination became final without objection or contest. See, Estate of Murphy, 104 Cal 554, 566, 38 P. 533; Estate of Salmonski, 38 Cal.2d 199, 207, 238 P.2d 966; Estate of Sargavak, 41 Cal.2d 314, 317-318, 259 P.2d 897.

The executor Bank of America filed a petition for a decree to determine the interests in the estate and the matter came on to be heard on April 5, 1960. The respondent moved the court to exclude all extrinsic evidence with reference to the March instrument and codicil upon the ground that the intent of the decedent was plain; that the will and codicil clearly expressed the testator's intent. The motion was granted and on April 7, 1960 a decree determining the interests in the estate was signed. The judge in effect ruled that the codicil superseded and revoked the dispositive provisions of the March instrument, that the preamble and clauses 'First' (payment of debts), 'Fifth' (payment of estate and inheritance tax), 'Sixth' (noncontest provision) and 'Eighth' (appointment of executors) of the March instrument remained in full force and effect and that respondent was entitled to distribution of the entire estate.

The appeal is from the order and judgment thus made.

The sole question of any consequence is: Did the court err under the circumstances in excluding all extrinsic evidence?

Appellants assert that the intentions of the testator cannot be declared with certainty from an examination of the face of the instruments admitted to probate; that evidence should have been introduced with reference to the facts and circumstances surrounding the execution of the testamentary documents.

Probate Code, §§ 102, 103, 104 and 105 are herein set forth. ¹

The appellants argue that it is uncertain what the deceased meant by the use of the words 'Last Beneficiary' in describing Izora H. Pflug, and that the phrase 'knowing to be my wife * * *' is ambiguous and further that it cannot be determined what the deceased meant by the use of the words 'To the Law of God.'

No offer of proof was made to the court by the appellants even though apparently the respondent requested at the time of hearing in court that a statement be made by appellants with reference to such proposed evidence.

Respondent relies heavily upon the Estate of Sargavak, 41 Cal.2d 314, 259 P.2d 897 and Estate of Salmonski, 38 Cal.2d 199, 204, 238 P.2d 966, 969. In Estate of Salmonski, which involved the construction of two testamentary documents (one a formal typewritten will and the other a handwritten codicil) as in the present case; the codicil in Salmonski read as follows:

"Sacramento, Calif.

June 17, 1946.

"Dear Mrs. Bardzinski.

"In case of my death kindly sell the stocks and devide everything that belongs to me between yourself and Mrs. Leocadia Butkin.

"This is my last wish.

Your friend

Walter Wladyslaw Salmonski"

At the time of the hearing a motion was made for an order submitting the matter on the pleadings and papers on file upon the ground that no other evidence, oral or documentary was admissible. The motion was granted. The court in effect held that there was no uncertainty in the words of either the will or the codicil, that the codicil was a later testamentary disposition and by its terms adequate to dispose of the estate and ordered that Mrs. Bardzinski and Mrs. Butkin take one-half each of the estate. The court said at page 209, 238 P.2d at page 972 in the Salmonski case:

'In the interpretation of wills, ascertainment of the intention of the testator is the cardinal rule of construction, to which all other rules must yield. Prob.Code, § 101; Estate of Lawrence, 17 Cal.2d 1, 6, 108 P.2d 893. In the process of arriving at that intention, different parts of the will are to be harmonized if possible--endeavoring to give expression to all the words of a will, Prob.Code, sec. 102, referring to other parts of the will to clear up any doubt or uncertainty that may appear with respect to any single part, and construing all parts in relation to each other so as, if possible, to form one consistent whole but 'where several parts are absolutely irreconcilable, the latter must prevail.' Prob.Code, sec. 103; In re Estate of Moorehouse, 64 Cal.App.2d 210, 215, 148 P.2d 385. All instruments constituting the testamentary disposition must be 'construed together as one instrument', Prob.Code, sec. 101, but the later executed document as the testator's last expression must control where it makes a clear and distinct gift of property wholly irreconcilable with a dispositive provision in the prior document. In re Estate of Mallon, 28 Cal.App.2d 106, 110, 81 P.2d 992. A clear and distinct devise or bequest cannot be affected by inference or arguments from other parts of the instrument. Prob.Code, § 104; In re Estate of Moorehouse, supra, 64 Cal.App.2d 210, 215, 148 P.2d 385.

'Manifestly here, the dispositive provisions of the letter or codicil stand in sharp contrast with those of the formal will. * * *'

The first document was in each case clear in all its terms that it disposed of the entire estate. The second document in each case is '* * * equally clear and adequate in disposing of the entire estate but in a manner contrary to and destructive of the dispositive provisions in the formal will.'

Appellants in the case before us did not represent to the court what they did believe the will meant and, as heretofore stated, offered no proof with reference thereto.

In the present case...