Sargavak's Estate, In re

• Citation: 216 P.2d 850,35 Cal.2d 93
• Parties: , 21 A.L.R.2d 307 In re SARGAVAK'S ESTATE. OHANNESON et al. v. LAMBRINIDOU et al. L. A. 20727.
• Decision Date: 11 April 1950
• Court: United States State Supreme Court (California)

Page 850

216 P.2d 850

35 Cal.2d 93, 21 A.L.R.2d 307

In re SARGAVAK'S ESTATE.

OHANNESON et al. v. LAMBRINIDOU et al.

L. A. 20727.

Supreme Court of California, in Bank.

April 11, 1950.

Rehearing Denied May 8, 1950.

Robert M. Dulin, Beverly Hills, Melvin E. Fink, Schell & Delamer and Charles E. Hobart, Los Angeles, for appellants.

C. W. Byrer, Los Angeles, and W. E. Cameron, Long Beach, for respondents.

PER CURIAM.

Contestants appeal from an order admitting a holographic instrument to probate as a codicil to a previously admitted witnessed will. Ruby Sargavak died March 22, 1947. By a formal will drawn by respondent Ohanneson as her attorney and executed July 9, 1945, she left all her property to the appellants. Respondent Mahdesian, as executor under that will, offered it for probate on March 31, 1947. On May 6, 1947, respondent Ohanneson offered the following instrument for probate as a codicil to that will:

'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.'

Appellants contested the admission of this instrument on the ground that testatrix did not intend it as a testamentary disposition of her property. They introduced without objection evidence to show that testatrix intended the instrument as an authorization to respondents to eject Mrs. Lillian Shooshan from the testatrix's house. Respondent Mahdesian testified to declarations of the testatrix that the allegedly dispositive provisions were intended only as a statement that her attorney and her executor were to dispose of her property according to the terms of the will of July 9, 1945. Respondent Ohanneson, as the only proponent of the codicil, offered no contradictory evidence, relying solely upon the allegedly clear language of the instrument. The trial court found that the instrument was executed with testamentary intent and admitted it to probate as a codicil to the will.

No question is raised as to compliance with Probate Code section 53 or as to Mrs. Sargavak's testamentary capacity. Appellants contend only that the uncontradicted evidence clearly discloses that the testatrix did not execute the instrument with testamentary intent. Respondent, however, urges that the extrinsic evidence was improperly admitted and could not be considered on that issue. He contends that when a will is clear and unambiguous on its face, extrinsic evidence cannot be admitted to show that it was not a will. This contention cannot be upheld.

Before an instrument may be probated as a will it must appear from its terms, viewed in the light of the surrounding circumstances, that it was executed with testamentary intent. 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. In re Richardson's Estate, 94 Cal. 63, 29 P. 484, 15 L.R.A. 635; In re Estate of Spencer, 87 Cal.App.2d 591, 197 P.2d 351; Habergham v. Vincent, 2 Ves.Jr. 204; Succession of Torlage, 202 La. 693, 12 So.2d 683; Mayhew v. Wilhelm, 249 Mich. 640, 229 N.W. 459; In re McCune's Estate, 265 Pa. 523, 109 A. 156; In re Estate of Button, 209 Cal. 325, 331, 287 P. 964; In re Williams' Estate, Tex.Civ.App., 135 S.W.2d 1078; Clark v. Hugo, 130 Va. 99, 107 S.E. 730; Thompson, Wills, § 12. It bears emphasis that we are here concerned not with the meaning of the instrument, but with the intention with which it was executed. ^* Regardless of the language of the allegedly testamentary instrument, extrinsic evidence may be introduced to show that it was not intended by the testator to be effective as a will. In re Estate of Janes, 18 Cal.2d 512, 515, 116 P.2d 438; Austin v. First Trust & Savings Bank, 343 Ill. 406, 414, 175 N.E. 554; In re Kemp's Will, 7 W.W.Harr. 514, 37 Del. 514, 523, 186 A. 890; In re Estate of Soper, 196 Minn. 60, 264 N.W. 427; In re Estate of Kenyon, 42 Cal.App.2d 423, 109 P.2d 38. Thus, an instrument that clearly appears testamentary may nevertheless be shown by extrinsic evidence to have been executed in jest (Nichols v. Nichols, 2 Phill.Ecc. 180; Trevelyan v. Trevelyan, 1 Phill.Ecc. 149), or as a threat to induce action by an interested party (Lister v. Smith, 3 S. & T. 282), or under the misapprehension that the instrument was a mortgage, In re Williams' Estate, Tex.Civ.App., 135 S.W.2d 1078, or to induce the 'legatee' to engage in illicit relations with the testator, Fleming v. Morrison, 187 Mass. 120, 72 N.E. 499, 105 Am.St.Rep. 386 or to relive the marker from annoyance by a would-be legatee. In re Estate of Siemers, 202 Cal. 424, 435, 261 P. 298, see, 1 Page, Wills, § 53.

Respondent relies upon a dictum in Re Estate of Pagel, 52 Cal.App.2d 38, 42, 125 P.2d 853, that, although extrinsic evidence can be admitted to show that the writer did not intend the writing in question to operate as a will, such evidence cannot be admitted to show that he intended it to operate as an instrument different from what on its face it purports to be. Respondent therefore contends that the evidence is inadmissible because it shows that the testatrix intended to execute a power of attorney. The intention of the testatrix is here material only in showing that she did not intend that the instrument operate as a will. Since extrinsic evidence is admissible to show the absence of testamentary intention, it does not become inadmissible because it does so by showing another intention.

The extrinsic evidence in this case consists for the most part of the oral declarations of the testatrix before and after the execution of the instrument in question. Such declarations, whether made at, before, or after the execution of the instrument are admissible, if offered for the purpose of ascertaining the intent with which the instrument was executed, In re Estate of Siemers, 202 Cal. 424, 435-436, 261 P. 298; In re Kemp's Will, 7 W.W.Harr. 514, 37 Del. 514, 523, 186 A. 890; Fleming v. Morrison, 187 Mass. 120, 122, 72 N.E. 499, 105 Am.St.Rep. 386; Clark v. Hugo, 130 Va. 99, 107 S.E. 730, 734; 6 Wigmore, Evidence, § 1736, p. 111; 1 Underhill, Wills, § 39, p. 48, and not for the purpose of proving the meaning the testator attributed to specific provisions of an admitted will. Colton v. Colton, 127 U.S. 300, 8 S.Ct. 1164, 32 L.Ed. 138; In re Estate of Pierce, 32 Cal.2d 265, 274, 196 P.2d 1; In re Estate of Farelly, 214 Cal. 199, 203, 4 P.2d 948; Prob.Code, § 105. 'Such * * * declarations of intent to make a will are admissible when the attempt is not to explain an ambiguity but to show the testamentary character of a letter.' In re Estate of Spies, 86 Cal.App.2d 87, 91, 194 P.2d 83, 85; In re Estate of Janes, 18 Cal.2d 512, 516, 116 P.2d 438; In re Estate of Siemers, 202 Cal. 424, 435, 261 P. 298; In re Estate of Morrison, 198 Cal. 1, 6-8, 242 P. 939; In re Estate of Spitzer, 196 Cal. 301, 306, 237 P. 739.

In re Estate of Smith, 31 Cal.2d 563, 191 P.2d 413, is not inconsistent with the foregoing. That case involved an unequivocal express revocatory intent unaccompanied by any declaration or conduct of the decedent inconsistent therewith. There was no evidence against the showing of the solemnly expressed intent co-existent with the execution of the revocatory instrument. The evidence established only that testatrix informed other persons that she had made a will, the provisions of which were those of the instrument offered for probate. She did not refer to the earlier revocation and offered no explanation of her purpose in writing it. A written revocation can be overcome only by evidence that revocation was not intended, not by evidence that at some later time the testatrix wished the will to be operative. The evidence of the decedent's subsequent oral declarations and conduct was held inadmissible because it had no bearing or relevancy under the facts to show an intent different from that unequivocally expressed by the revocatory writing. None of it disclosed conduct, or influences, or state of mind at the time of the written revocation. Nor did the declarations refer to the previous revocation. The evidence there relied on merely supported an inference that the decedent considered her will operative. The majority of this court expressly recognized that the effect of such a duly executed express revocatory instrument could not thus be overcome.

This appeal does not present a case in which the trial court erroneously excluded relevant extrinsic evidence. The evidence was admitted and considered by the trial court in determining whether the instrument offered for probate was executed with testamentary intent. The trial court concluded that 'said decedent executed said instrument of date of September 29, 1946, with the intention to create a revocable disposition of her property to accrue and take effect only upon her death and passing no present interest' and that 'said intent to make such testamentary disposition of her property existed at the time of the execution of said instrument.'

It is true, as contestants assert, that the evidence of decedent's declarations relative to the execution of the instrument is...