Sargavak's Estate, In re

• Decision Date: 11 August 1953
• Citation: 41 Cal.2d 314,259 P.2d 897
• Court: California Supreme Court
• Parties: In re SARGAVAK'S ESTATE. KURKJIAN et al. v. OHANNESON et al. L. A. 22189.

Page 897

259 P.2d 897

41 Cal.2d 314

In re SARGAVAK'S ESTATE KURKJIAN et al. v. OHANNESON et al.

L. A. 22189.

Supreme Court of California, in Bank.

Aug. 11, 1953.

Cameron & Perkins, William Kinley, Simpson & Wise and George E. Wise, Long Beach, for appellants.

C. W. Byrer, Charles E. Hobart, Los Angeles, Robert M. Dulin, Beverly Hills, Spurgeon Avakian, Oakland, and Melvin E. Fink, Los Angeles, for respondents.

CARTER, Justice.

This is an appeal from an order in proceedings to determine heirship in the estate or Ruby Sargavak, Deceased, initiated by nephews and nieces, the only heirs of Mrs. Sargavak. J. G. Ohanneson and Samuel G. Mahdesian, the legatees in the codicil later mentioned, were declared by the order to be entitled to the entire estate under the codicil.

It appears that in 1945 Mrs. Sargavak made a witnessed will in which she named her heirs as legatees and Mahdesian as executor. That will was admitted to probate and a contest filed on theground of mental incapacity. Following a verdict for contestants the probate court granted to proponents a judgment notwithstanding the verdict. That judgment was reversed on appeal, Estate of Sargavak, 95 Cal.App.2d 73, 212 P.2d 541, and judgment entered on the verdict. The trial court then granted a motion for a new trial, and apparently that proceeding has not progressed beyond that stage.

Shortly after the 1945 will was offered for probate a holographic instrument, dated September 29, 1946, was offered for probate as a codicil to the 1945 will. It reads:

'1566 W-29th St.

Los Angeles 7, Cal.

Sep. 29, 1946

Sunday Evening

'To Whom It May Concern:

'I the writer Mrs. Ruby Sargavak wants everyone to know that she is writing these lines of her own free will no one is putting her or urging her to do it. She leaves everything she has to her Boy Sam Mahdesian & her layer, J. G. Ohanneson she gives them power of attorney to divide what is left of her belongings to them. She specifically advises to give nothing what so ever to Mrs. Lillian Shooshan she is no relation nor friend of hers Mrs. Sargavak has been more than kind to her, just because she begged us to help her for a little time Mrs. Sargavak would rather help her very own nieces & grand nieces & perfect strangers, who are truly in need of help. God has been good to us, she did not appreciate the goodness of the Lord to her. All honor & Glory unto his High and Holy Name! Mrs. Ruby Sargavak. P. S. It is 8 o'clock, I am very tired

Ruby Sargavak.'

Its probate was contested by Mrs. Sargavak's heirs on the ground that she did not intend it as testamentary disposition of her property. Extrinsic evidence was received on that question and it was ordered admitted to probate. On appeal it was claimed that the evidence without contradiction showed no testamentary intent and also that extrinsic evidence was not admissible. The order was affirmed, this court stating that 'we are here concerned not with the meaning of the instrument (codicil), but with the intention with which it was executed. In re Estate of Sargavak, 35 Cal.2d 938 96, 216 P.2d 850, 851, 21 A.L.R.2d 307. We held that extrinsic evidence was admissible to show whether the testator intended the codicil to be effective.

In the instant heirship proceedings initiated by decedent's heirs the latter asserted that it was her intent by the codicil that the property go to Ohanneson and Mahdesian in trust for persons other than Mrs. Shooshan and that they have power of attorney to divide it between the other persons, but as the beneficiaries of the trust were uncertain (th claimed beneficiaries being decedent's nieces and nephews and strangers) the trust failed and the property would pass by intestate succession to the heirs. The court refused to permit the heirs to introduce any extrinsic evidence to show that the intent was that claimed by them and determined that Ohanneson and Mahdesian took the property absolutely, and that no trust was intended by the codicil.

The heirs, petitioners in the heirship proceedings, assert error claiming that the codicil was ambiguous on its face and extrinsic evidence was admissible to show a trust. In this connection they contend that this court's decision in the former appeal, In re Estate of Sargavak, supra, 35 Cal.2d 93, 216 P.2d 850, 21 A.L.R.2d 307, established that such evidence was admissible. The extrinsic evidence sought to be introduced by petitioners consisted of the circumstances surrounding the making of the will such as the size of the estate, the property involved and the circumstances and relations of the parties involved; and oral declarations of the testatrix such as were mentioned in Estate of Sargavak, supra, 35 Cal.2d 93, 216 P.2d 850, including her statement to Mahdesian in referring to the codicil that she wanted Ohanneson, her attorney, and him, as her executor, to take care of her estate the way he knew she wanted it.

Referring to the last contention first (the effect of the decision in the former appeal on this case), it is clear that the decision on the former appeal has no bearing upon the present case. As above mentioned it was there expressly stated in the forepart of the opinion that the court was concerned only with the question of whether the codicil was intended as a testamentary document and not with the meaning of the instrument. Here we are concerned with the meaning whether there was an intent to create a trust. It is true, as stated by Ohanneson and Mahdesian, that we there said, in discussing the evidence on the question of testamentary intent, that nothing indicated an intent that decedent did not leave the property to those persons, that there was evidence of such intent because of the close association between decedent and them and that the purpose to leave her property to them was expressed by the instrument. But that discussion was aimed solely at the question of whether she intended to make a will and not as to the meaning of the will as to whether their interest should be absolute. The only thing before the court was whether the codicil was a will and no question of construction was involved. See In re Estate of Salmonski, 38 Cal.2d 199, 238 P.2d 966.

The statutes on the subject of the admissibility of extrinsic evidence in the construction of wills provide: 'A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will.' Prob.Code, § 104. 'When there is an imperfect description, or no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intentions; and when an uncertainty arises upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, excluding such oral declarations.' Prob.Code, § 105. Recently this court has stated the rules of construction and on the admissibility of extrinsic evidence. To impose a trust upon property bequeathed it must appear that the testator intended to impose mandatory duties, and where an absolute estate has been devised by will, that estate will not be limited by subsequent words unless they indicate as clear an intention therefor as was shown by the words creating the estate. In re Estate of Collias, 37 Cal.2d 587, 233 P.2d 554; In re Estate of Kearns, 36 Cal.2d 531, 225 P.2d 218; Prob.Code, § 104, supra. While declarations of the testator before and after the execution of the will are admissible for the purpose of ascertaining the intent with which the instrument was executed, they are not admissible 'for the purpose of proving the meaning the testator attributed to specific provisions of an admitted will. (Citations.) 'Such * * * declarations of intent to make...