Kuttler's Estate, In re

• Decision Date: 12 May 1958
• Parties: In the Matter of the ESTATE of Ethel May KUTTLER, Deceased. Bertha McQUARRIE, Petitioner and Appellant, Earl Hayter, also known as O. E. Hayter, Petitioner and Appellant, v. Michael M. KUTTLER, Guardian for William Brent Kuttler, Joan Perry Kuttler, and Nacy Ann Kuttler, Minors, Petitioners, Contestants and Respondents. Civ. 22428.
• Court: California Court of Appeals Court of Appeals

Page 624

325 P.2d 624

160 Cal.App.2d 332

In the Matter of the ESTATE of Ethel May KUTTLER, Deceased.

Bertha McQUARRIE, Petitioner and Appellant, Earl Hayter, also known as O. E. Hayter, Petitioner and Appellant, v. Michael M. KUTTLER, Guardian for William Brent Kuttler, Joan Perry Kuttler, and Nacy Ann Kuttler, Minors, Petitioners, Contestants and Respondents.

Civ. 22428.

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

May 12, 1958.

Reharing Denied June 6, 1958.

Hearing Denied July 9, 1958.

Kenneth C. Beatson, Los Angeles, for appellant Bertha McQuarrie.

William C. Rau, Los Angeles, for appellant Earl Hayter.

Wellborn, Barrett & Rodi, Frank C. Hubbard, Gyte Van Zyl, Los Angeles, for respondents.

ASHBURN, Acting Presiding Justice.

Several appeals are presented together in this court had cause. Of primary importance is the one taken from an order refusing to admit to probate a holographic document made by decedent, Ethel May Kuttler, on February 16, 1956.

Decedent died a widow on February 28, 1956, leaving three grandchildren as her sole heirs; two brothers and a sister survived her, as did Earl Hayter to whom she was engaged to marry. Her estate consisted of cash, stocks, bonds, trust deed notes, furniture and household and personal effects; also certain real property appraised at $52,500; the entire estate was valued at $143,000.

Her sister, Bertha McQuarrie, and her fiance, Earl Hayter, petitioned for probate of the holographic instrument; their application was opposed by Michael M. Kuttler as guardian for the three minor grandchildren. The objections were sustained and probate of the document was denied. It reads:

'Los Angeles 15, Calif. February 16th,-56 To whom it may concern: If at any time I should pass on before I have a recorded Will: This is to certify that I do not want Mike Kuttler or Vera Kuttler, my deceased Sons' wives to have one thing or one cent of what I have: nor the children Joan, Bill or Nancy Ann as I never see them so I enjoy no pleasure from them.

'Notify Earl Hayter or my sister Bertha McQuarrie DO-7-7821--for them to dispose of my belongings as they see fit. Signed Mrs. Ethel May Kuttler 2/16/56'.

The trial judge ruled that the instrument is not testamentary in character, was not intended to be testamentary, was not intended to dispose of decedent's property and did not do so. From the order denying probate Hayter and McQuarrie appeal.

The effect of the instant ruling is to vest decedent's 'belongings' in the three grandchildren whom she expressly disinherited.

There is no escape from the conclusion that Mrs. Kuttler did intend this document to operation as her will. Testamentary intention is thus defined in Re Estate of Sargavak, 35 Cal.2d 93, 95, 216 P.2d 850, 851, 21 A.L.R.2d 307: 'The testator must have intended, by the particular instrument offered for probate, to make a revocable disposition of his property to take effect upon his death.' To this definition the court added this caution: 'It bears emphasis that we are here concerned not with the meaning of the instrument, but with the intention with which it was executed.' 35 Cal.2d at page 96, 216 P.2d at page 851.

It is also well to bear in mind the fact that the search for a testatrix' intention does not involve a determination that she understood the legal effect of the directions found to have been expressed by her in the will. The effect of what she has provided is governed by substantive law. If she makes a bequest which violates the rule against perpetuities (In re Estate of Fair, 132 Cal. 523, 60 P. 442, 64 P. 1000) or attempts to immunize a trust beneficiary's income from claims of his creditors to an extent not recognized by statute (Canfield v. Security-First Nat. Bank, 13 Cal.2d 1, 87 P.2d 830) or to defeat the claim of the Alien Property Custodian to a future interest (In re Estate of Zuber, 146 Cal.App.2d 584, 304 P.2d 247), that intention, though plainly shown, cannot prevail.

57 Am.Jur., § 1134, p. 729: 'Contravention of Rule of Law or Policy.--Although all the arbitrary rules and canons of testamentary construction are subordinate to the intention of the testator, if is universally recognized that the testatorial intention, even where clearly ascertainable, must yield to an established rule of law or public policy if it is in conflict therewith. Common examples of situation in which the testator's intention is overcome upon this theory are afforded by wills whose terms disregard the rule in Shelley's Case or the rule against perpetuities. In such cases the will must fail of effect, not because the intent of the testator does not control in its construction, but because the law will not permit his intent to be accomplished. It is to be remembered in this connection that the question in construing a will is not whether the testator intended to make to valid disposition of his property, but what provision he actually intended to make; when that intention is found, it is for the court to determine whether or not the intended provisions are valid or illegal.'

Not only does the document at bar disclose unmistakable testamentary intent but extrinsic evidence, which was clearly admissible (In re Estate of Sargavak, supra, 35 Cal.2d 93, 97, 216 P.2d 850), explains the form which the document took. Mrs. Kuttler had talked to her attorney several times about preparing a will for her. She told him: 'I don't want my grandchildren or my daughters-in-law to get their hands on anything I have got.' He advised that she could not disinherit her grandchildren unless she gave the property to someone else; '[y]ou have to decide who you are going to give it to or they will take it against the will on any other part you are going to dispose of.' The reply was: 'I haven't decided, but I am thinking it over.' The matter was left in this posture at the conclusion of a conversation of February 8, 1956. By February 16, 1956, she had devised a means of making a will which would serve her purpose until she arrived at a definite decision as to how she wanted to distribute her estate. She decided to give her sister, Bertha McQuarrie, and her finance, Earl Hayter, a general power of appointment. Perhaps shd did not think in such terms, but that is legal effect of what she did. She died twelve days later, on February 28, 1956. The day after the writing was executed she spoke to Earl Hayter about it; he lived next door; saw her every day and they were engaged to be married on or about April 25, 1956. On this February 17th, 'she told me that if anything should happen to her, 'I have my will lying there on the desk.'

'Q. Did she point to the desk or indicate the desk at the time? A. She just nodded (illustrating).

'Q. Nodded to it? A. Yes. And I started over there, and she said, 'Don't bother; it will be right there if you want it.'

'Q. And what else did she say? A. She said, 'Call my sister, too.' And I said, 'What is her telephone number?' She said, 'It is on there' (indicating).

'Q. Again nodding toward the desk? A. Yes. And I started to go pick it up and she said, 'Just leave it there."

The sister, Bertha McQuarrie, saw her on February 23rd: 'I came in there and she was ill, and when I entered the room she said, 'I thought I was going to die last week. I left something for you on the desk.'' The combination of the oral evidence and the document shows an indubitable testamentary intent.

In our opinion there was no substantial basis for rejection of this testimony by the trial judge. 'While no universal and immutable formula can be prescribed for determining the weight to be accorded testimonial evidence, it has frequently been said that testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact.' Gomez v. Cecena, 15 Cal.2d 363, 366, 101 P.2d 477, 478. 'It is the general rule that 'the uncontradicted testimony of a witness to a particular fact may not be disregarded, but should be accepted as proof of the fact.' 10 Cal.Jur. § 362, p. 1143; In re Estate of Warner, 167 Cal. 686, 690, 140 P. 583; Hynes v. White, 47 Cal.App. 549, 552, 190 P. 836.' Joseph v. Drew, 36 Cal.2d 575, 579, 225 P.2d 504, 507. But if that testimony were properly disbelieved, its rejection would not create affirmative evidence to the contrary of that which was discarded. In re Estate of Bould, 135 Cal.App.2d 260, 264, 287 P.2d 8, 289 P.2d 15.

Be that as it may, the writing in question affords irrefutable internal evidence of the requisite testamentary intent. First it disinherits in explicit language decedent's only heirs (she left no children and no other grandchildren); the it confers a power of appointment upon Hayter and McQuarrie with respect to her entire 'belongings.' ¹

'A power of appointment, which may be created by deed or by will, is defined, generally, as a power or authority given to a person to dispose of property, or an interest therein, which is vested in a person other than the donee of the power.' In re Lidston's Estate, 32 Wash.2d 408, 202 P.2d 259, 265. No particular form of words is necessary to the creation of such a power. 3 Tiffany Real Property, 3d Ed., § 685, p. 20; In re Rowlands' Estate, 73 Ariz, 337, 241 P.2d 781, 784; In re Lidston's Estate, supra, 202 P.2d 266; 96 C.J.S. Wills § 1062 d, p. 702. Such a disposition of a testatrix' property satisfies the cases next cited, which hold that it is essential to a valid will disinheriting all or any of the heirs that it also make some valid disposition of decedent's property. Estate of Walkerly, 108 Cal. 627, 652, 41 P. 772; Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 207, 92 P. 184; In re Estate of Fritze, 85 Cal.App. 500, 505, 259 P. 992; In re Estate of Mathie, 64 Cal.App.2d 767, 781, 149 P.2d 485; In re Estate of Heney, 66 Cal.App.2d 867, 869, 153 P.2d 427; In re Estate of Dunn, 120 Cal.App.2d 294, 295, 260 P.2d 964; 2 Page on Wills (3d Lifetime Ed.) §...