Tillman's Estate, In re

• Decision Date: 17 October 1955
• Citation: 136 Cal.App.2d 313,288 P.2d 892
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Cornclius TILLMAN, Deceased. John H. WHATLEY, Petitioner and Appellant, v. Lorna SLOAN, Petitioner and Respondent. Civ. 21123.

Page 892

288 P.2d 892

136 Cal.App.2d 313

In the Matter of the ESTATE of Cornclius TILLMAN, Deceased.

John H. WHATLEY, Petitioner and Appellant, v. Lorna SLOAN, Petitioner and Respondent.

Civ. 21123.

District Court of Appeal, Second District, Division 3, California.

Oct. 17, 1955.

Brown, Hamill & Hunt, John H. Whatley, Pasadena, for appellant.

Zephyr M. Ramsey, Pasadena, for respondent.

ASHBURN, Justice pro tem.

This is an appeal from a judgment denying probate of a letter of decedent Cornelius Tillman which proponent claimed to be a holographic will. Prior to presentation of the letter for probate a formally drawn and executed will of December 7, 1953 had been admitted to probate, respondent Lorna Sloan had been appointed executrix and had qualified and acted as such. John H. Whatley petitioned for the probate of the letter and sought appointment of himself as administrator with the will annexed. He has taken this appeal but the real party in interest appears to be decedent's nephew, Spencer Tillman. The ruling was that the letter was not signed or sent with testamentary intent and hence did not constitute a holographic will.

The text is as follows: 'Pasadena Calif Jan 8 1954 Dear Spencer My Dear Nephew I Reseive your letter was so glad to hear from Hope that you can come out you come on out hear I will Pay your money back to you. Spencer what I have is for you and your family--you Let me no what you ar going to do & when you are going to start I have Something to talk over with you Let me hear from you From C. Tillman 1045 N Wilson ave.' Spencer resided at West Point, Mississippi, and received the letter there.

The evidence upon this question of intent consisted largely of declarations made by decedent both before and after the date of the letter. The controlling principles here applicable are stated in Re Estate of Sargavak, 35 Cal.2d 93, 95-96, 216 P.2d 850, 851, 21 A.L.R.2d 307. '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. [Citing cases.] 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. [Citing cases.] * * *

'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 [citing cases], and not for the purpose of proving the meaning the testator attributed to specific provisions of an admitted will. [Citing cases.] '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.' [Citing cases.]' The significance of this language is emphasized by the ruling in the later case of In re Estate of Sargavak, 41 Cal.2d 314, 319, 259 P.2d 897, 899, where the interpretation of the same document was the problem presented. '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 a will are admissible when the attempt is not to explain an ambiguity but to show the testamentary character of a letter.'''

Moreover, "before a documentwill be admitted to probate as the last will and testament of a decedent, it must satisfactorily appear that the maker of the instrument intended by the very paper itself to make a disposition of his property * * *." And 'where there exists a previously made and unrevoked will of the testator, the later holographic instrument claimed to be a will should be so phrased that there can be no doubt from its language that the intention of the testator was thus to make further testamentary provisions.' In re Estate of Beebee, 118 Cal.App.2d 851, 858-859, 258 P.2d 1101, 1106. In reviewing the evidence upon this question of testamentary intent we are governed by the familiar rule. 'The rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. * * * 'In reviewing the evidence * * * all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary * * * principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.' (Italics added.)' In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689, 690.

In 1944 decedent executed a will, prepared by his attorney Zephyr M. Ramsey, which made his wife chief beneficiary. She died and he had the attorney prepare a new will which he executed on December 7, 1953, being the one which was probated in this proceeding. It leaves $1,000 to his brother, $200 each to three of his wife's relatives, and $1 each to his three sisters and certain nieces and nephews. The residue is given to some 32 great nieces and nephews who are named therein. Spencer Tillman is not mentioned in the will, though two of his children share in the residue. Upon the 1944 will decedent endorsed in his own handwriting 'Void, pay this no mind, Cornelius Tillman.' He had not seen Spencer Tillman since Spencer was quite small.

The letter was written one month after execution of the probated will. It reveals that Spencer had written his uncle, apparently suggesting a visit if only he, Spencer, had the money. Cornelius was pleased, said he would refund the expense. Also: 'Spencer what I have is for you and your family * * * I have Something to talk over with you.' No words of present disposition, but a suggestion of future action of some kind after seeing and talking with Spencer. According to his testimony the uncle telephoned him the next day after he received the letter, asked him if he had it, told him to take care of it, 'because that letter I wrote you, I am willing you all of my property for you and your family.' Also that he was very sick and wanted to see Spencer, who said he would leave right away. He and his aunt, Reaby Mims (sister of decedent) left on the 12th and arrived on Saturday, the 16th of January. The uncle was a 'mighty sick man.' Spencer further testified that the letter was first mentioned on Monday, when Cornelius again inquired if he had the letter, and told him to keep it 'because on that letter I am willing you and your family all of my property.' In the same conversation he asked how Spencer would like to stay out here and was told by the nephew "Fine, if I only had a place to stay.' He said, 'Spencer, I am giving you and your family this home, all of my property, and I want you to come and stay right in the front room here; you and your family take the whole front.' I says, 'Yes, uncle, I will.' I said, 'but I will have to go back home first and kind of get straight.' He said, 'Oh, I know that.' I said, 'Well, sure, I will be more than too glad." Spencer and his Aunt Reaby stayed a month with decedent. On the day they left, according to Spencer, the uncle asked if he was sure he had the letter, and, when told he was sure, said: "Well, now, you keep that letter because that letter is my will that I am willing you and your family all of my property after my death." Spencer also testified that decedent inquired if he would return with his family and, being answered in the affirmative, said he wanted Spencer and his family to take the whole front of the house. The sister, Mrs. Mims, testified that on the 18th, in the absence of Spencer, decedent told her that 'The letter that I wrote Spencer, I will Spencer and his family all of my property after my death'; and 'After my death Spencer and his family gets everything I have because the letter is my will.' She...