Vollhaber's Estate, In re

Decision Date19 May 1967
Citation59 Cal.Rptr. 169,251 Cal.App.2d 145
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn the Matter of the ESTATE of Mary VOLLHABER, Deceased. Baldo M. KRISTOVICH, Public Administrator, Appellant, v. Mary SLINEY, Petitioner and Respondent. Civ. 30706.

Harold W. Kennedy, County Counsel, and Gerald F. Crump, Deputy County Counsel, for appellant.

Armstrong & Brown and Laurence K. Brown, Los Angeles, for respondent.

FOURT, Associate Justice.

This is an appeal from an order which, in effect, revoked letters of administration with the will annexed previously issued to the appellant public administrator, and then issued to Mary Sliney, respondent, letters testamentary.

Mary Vollhaber, a resident of the county of Los Angeles, died on March 20, 1965, leaving an estate in the county. Her adult son, William J. Vollhaber, predeceased her. On April 16, 1965, the public administrator filed a petition for probate of will and for letters of administration with the will annexed. In the petition it is set forth that 'no one is named in said will as executor thereof,' (emphasis added); that the names and residences of the devisees and legatees named in the will are: Mary Slivey (sic) 1012 Lincoln Avenue, St. Paul, Minnesota; Geraldine Slivey (sic) (same address as above), William J. Vollhaber, an adult son, predeceased, and Pomona Pacific State Hospital.

'The' will of decedent consisted of three holographic instruments as follows:

'Dec 12--1957

'I Mary Vollhaber will everything (after my funeral expinses), I own, to My Son. To the religious home for retarted children that he shall be living in and who cares for him, the sum of $75 per month as long as he lives. When he dies the balance of the money goes to Mary Sliney and Geraldine Sliney of St. Paul, Minnesota

'Mary Vollhaber'

'Sept 2--1959

'Being of sound mind, I will my home, all belongs (sic) including money to my son, William J. Vollhaber. I appoint Mary and Geraldine Sliney, 1012 Lincoln Ave. St. Paul Minnesota, (sic) Gaurdians (sic) & executrix (sic) of my son. They are to put my son in a regilious (sic) home for boys of his type. They are to make the choice and Pay monthly for his care from the money derived from the sale of my home and his social security. At my son's death they are to have the remaining money.

'If any relatives successfully contest my will, I leave each of them one dollar.

'If my son and I die at the same time, I will everything to the Sliney girls.

'Mary H. Vollhaber

4507 Van Noord

N. Hollywood

Cal'

(Emphasis added.)

In the margin was also written: 'Mary infectigate (sic) the Pomona, Calif for the retarded.'

'Dec. 7, 1962

'Being sound in mind I will all my (assets) after my furnorel (sic) & buried (sic) in Mission Cemetery, expenses are paid, to the institution that cares for my retarted (sic) son, preferably Pomona Pacific State Hospital, at the rate of $100 per month for clothing etc. and his burial in Mission Cemeltry (sic). My assets I mean money from the sale of my separate property and my money in bank.

'Mary H. Vollhaber

'I will two dollars to anyone who successfully contests this Will

'Mary H. Vollhaber

'What is left after Billys (sic) death goes to Mary Sliney 1012 Lincoln Ave St Paul Minnesota'

Notice of hearing of the petition for probate of will apparently was published on April 21st, 22nd and 28th, 1965, in the Valley Times, North Hollywood, California, and a copy of such notice apparently was supposedly directed to each of the persons as named in the will.

Probate Code, section 328, sets forth in part that the notice of hearing 'must be personally served upon * * * the devisees and legatees Named in the will and all persons named as Executors who are not petitioning, or mailed, postage prepaid, * * * Addressed to them * * *' (Emphasis added.)

Mary Sliney did not receive any notice from the public administrator. She did, however, receive two letters from estate information service companies which told of the death of Mrs. Vollhaber. She wrote a letter immediately with reference to the subject matter. 1

A representative of the probate division of the county clerk's office replied by letter dated April 21, 1965, in which he advised that Mrs. Vollhaber died on March 20, 1965; that the public administrator had filed a petition for probate of her will and that she could obtain a copy of the will upon the payment of $1.50. Mary Sliney replied on April 24th by enclosing $1.50 and requested a copy of such will. Upon receipt of the copy of the will on Friday, April 30th, she immediately called and made an appointment with her attorney, Richard E. Kyle, in Saint Paul, Minnesota, for the following Monday, May 3rd. She delivered the copies of the three holographic instruments which she had received with the correspondence above mentioned. The attorney, Mr. Kyle, wrote on May 3, 1965, to the public administrator as follows:

'Miss Mary A. Sliney of St. Paul has consulted us concerning the above estate.

'She wrote to the County Clerk of Los Angeles County and received from that office photostatic copies of three instruments dated respectively December 12, 1957, September 2, 1959 and December 7, 1962 which appear to be holographic wills executed by the above named decedent. She was also advised by the County Clerk that you had filed a petition for proof of will.

'We are writing to ascertain the present status of the proceeding and to inquire whether it is necessary or advisable for her to retain counsel in Los Angeles to look after her interests under the decedent's will.

'I would appreciate it if you would also advise us as to the date of hearing on the petition to prove the will. * * *'

No reply was received by June 14, 1965, and on that date Mr. Kyle wrote another letter to the public administrator calling his attention to the fact that no reply had been made to his earlier letter.

On June 15, 1965, the public administrator wrote to Mr. Kyle as follows:

'In answer to your letter, dated May 3, 1965, this Office has filed for Letters of Administration C.T.A., and the hearing of the petition for probate of the will was held on May 12, 1965.

'We are noting your office (sic) of assistance, for which please accept our thanks.

'It does not appear necessary for your client to engage local counsel at this time.'

This last letter, written more than a month after the hearing and more than six weeks after the original inquiry was made, was the first notice which Mary A. Sliney, or her attorney, had received with reference to the date of the hearing. Further, it was the first notice they, or either of them, had received that the public administrator had petitioned for letters of administration with the will annexed rather than merely for probate of the will.

Mr. Kyle retained and consulted with Armstrong and Brown, present California counsel for Mary A. Sliney. California counsel prepared and filed, on September 28, 1965, a petition for the revocation of the letters of administration previously issued to the public administrator and for the issuance of letters testamentary to Mary A. Sliney. A renunciation of letters testamentary by Geraldine Sliney, and a request by Geraldine that Mary Sliney be appointed to act as executrix and that letters testamentary be issued to her, and copies of all the correspondence, were attached as exhibits to the petition. The petition last mentioned sets forth that no notice of the hearing had been received, or of the fact that the public administrator sought to have letters of administration issued to himself until after the hearing had been held.

The petition was heard on November 4, 1965. Evidence disclosed that the house and lot (the major asset of the estate) had been and was being badly neglected by the public administrator. The letters of administration issued to the public administrator were ordered revoked and Mary A. Sliney was appointed as executrix of the estate.

Appellant now asserts that Mary Vollhaber did not effectively appoint respondent as the executor of her estate and further, that in any event the matter is res judicata and the judge had no authority to make an order overriding the first order. We conclude that there is no merit to appellant's contentions. P Admittedly the words 'I appoint Mary and Geraldine Sliney, 1012 Lincoln Ave. St. Paul Minnesota, gaurdians (sic) & executrix (sic) of my son' are ambiguous. However, the trial judge took testimony and concluded that decedent meant by what she wrote that Mary and Geraldine Sliney should be the executrices of her estate. The word 'executrix' as used is completely inoperative, meaningless and without effect unless it is construed as did the trial judge. Probate Code, section 102, provides in part that the words of a will 'are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; * * *.' Decedent in the same instrument directed that Mary and Geraldine Sliney 'are to put my son in a regilious (sic) home for boys of his type. They are to make the choice and pay monthly for his care from the money derived from the sale of my home * * *'

The provision with reference to the sale of the home charged Mary and Geraldine Sliney with the duties which only an executrix could perform. There can be no doubt that Mary and Geraldine Sliney are designated as an executrix. In Estate of Henderson, 196 Cal. 623, 238 P. 938 the court had under consideration an holographic will where the words 'And Request that Frank Cutting have charge of my affairs' were written by the testatrix. (P. 626, 238 P. p. 943.) The court said at page 639, 238 P. at page 943: 'This language means, as is naturally to be inferred from the connection in which it is used, that the deceased desired and intended that said Cutting, her son-in-law and a legatee by...

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3 cases
  • Estate of Muller
    • United States
    • California Court of Appeals Court of Appeals
    • December 4, 1969
    ...adjudication, as an attack on those proceedings themselves because of the extrinsic fraud of respondent. (See Estate of Vollhaber (1967) 251 Cal.App.2d 145, 153, 59 Cal.Rptr. 169; and cf. Estate of Davis, supra, 151 Cal. 318, 327, 86 P. 183, 90 P. 711.) Here again the petitioner runs afoul ......
  • Lee v. Offenberg
    • United States
    • California Court of Appeals Court of Appeals
    • August 14, 1969
    ... ...         The parallel between the instant case and that of Estate of Vollhaber, 251 Cal.App.2d 145, 59 Cal.Rptr. 169 as it relates to the propriety of the correction of an erroneous judgment is inescapable. There, ... ...
  • Poder's Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • July 14, 1969
    ...any proceedings thereafter (citing Farmers etc. Nat. Bank v. Superior Court (1945) 25 Cal.2d 842, 155 P.2d 823; Estate of Vollhaber (1967) 251 Cal.App.2d 145, 59 Cal.Rptr. 169). The petition for probate of will listed among the heirs the present appellants, giving their addresses simply as ......

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