Wolfe's Estate, In re
| Decision Date | 29 March 1968 |
| Citation | 67 Cal.Rptr. 297,260 Cal.App.2d 587 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ESTATE of Ernest WOLFE, etc., a Missing Person. Daniel J. MONACO, Petitioner and Respondent, v. Gertrude PETERSON, Objector and Appellant. Civ. 24406. |
Carr, McClellan, Ingersoll, Thompson & Horn, by Robert J. MacDonald, Burlingame, Marvin J. Christiansen, Santa Clara, for appellant.
Harold B. Reeve, San Mateo, for respondent.
The question presented by this appeal is whether a handwritten letter is admissible to probate as its author's holographic will. The letter, which is in a barely legible scrawl, reads as follows (strikeouts by the author shown, within brackets):
'Redwood City Calif
July 29--1927
'R 1 Box 317
'Dear Brother I will drop you a few lines this morn. this leaves me OK hope you all are the same kid I am flat broke except my place I (a) have not got no job here yet so I am (leaveing) leaveing to hunt work I dont know where I am going but if I ever make enough money to get Stamps I will write you again but do not write untell you here from me it might be
'2
best for you to write Elsie the rest of the folk is enjoying life very well not so good here for me. We sold the store at Palo Alto I am leaveing my Place in Menlo Park for you if I never call for it (it) the place is yours it is rented now $22.50 per month the rest is due on the 5th of each month but you might (a) hafto give Elsie part to Colect it you can write about that if you
'3
ever take a notion to come to Calif you will have a place to live in. Say I am leaveing my trunk with Elsie but if she dont want it here she will send it to you it has all my pictures in it and ever thing that belongs to (illegible strikeout) me in it if they want to sell the place and all get to gether go ahead and you can have my part of it and all that the Estate
'4
owes me on Papa expence when I came back there at his death Elsie knows all about it as she went part of it I have a note of it in my trunk I must close for this time do not know when I will write again do not write me write Elsie
'Lots of Love to Brother Herman from Ernest Wolfe
'PS if you want to sell the Place in Menlo Park go (a)head and sel it but do not
'5
sell it to buy the place back ther for you will loose money on it but if you thank that would be best go head (three illegible strikeouts)
'6
'I never come back untell I get an nother Start.
'if I were you I would keep this letter'
When the letter was offered for probate, it was accompanied by the envelope in which it was apparently mailed. In the same handwriting as the letter, the envelope's face reads:
'Mr. Herman Wolfe
R. 1. Box 22 Gardon Tex'
On the reverse side of the envelope, also in the same handwriting, there is written:
Postmarks and hand-stamped legends on the envelope indicate that it was mailed to its Texas addressee by registered mail on July 29, 1927.
Respondent offered the letter for probate as the will of Ernest Wolfe, 'a missing person,' asserting that Herman Wolfe is Ernest's devisee under the will. Respondent acted--and still acts--on behalf of an adult child of Herman, who is now deceased. Appellant, one of several collateral heirs of Ernest, appeared below in opposition to the petition for probate. Her opposition was based upon the contentions, among others, that the letter was not a will because it did not reflect testamentary intent on Ernest's part and that it failed to meet the formal requirements of a holographic will. (Prob.Code, § 53.)
The appeal is from the probate court's order admitting the letter (with the envelope) to probate as Ernest's will. Appellant does not challenge the court's finding that the instructment was, in form, a valid holographic will. The sole question on the appeal is, as appellant states, 'Whether the letter * * * meets the requirement of testamentary intent.'
Where a trial court's interpretation of a written instrument turns upon the credibility of conflicting extrinsic evidence admitted in aid thereof, we are bound by the interpretation reached. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839.) We are free to make our own interpretation, however, if the trial court (1) admitted no extrinsic evidence (2) made its determination upon incompetent evidence, or (3) acted upon evidence which was not in conflict. (Parsons v. Bristol Development Co., supra, at pp. 865--866, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Darms (1966) 247 Cal.App.2d 254, 257, 55 Cal.Rptr. 463.) Appellant states that 'No evidence, either oral or documentary, was presented to the (probate) Court' when the petition for probate was heard. While this may be literally true, it is apparent that the court considered certain extrinsic facts in interpreting the letter to be Ernest Wolfe's will.
Some of the extrinsic facts reached the probate court in the form of uncontroverted allegations in the parties' pleadings and briefs below: others had been adjudicated in a previous probate proceeding. None of the facts is disputed, and the evidence of none is in conflict. We are therefore free to make our own interpretation of the letter. 1 Parsons v. Bristol Development Co., supra, 62 Cal.2d 861 at pp. 865--866, 44 Cal.Rptr. 767, 402 P.2d 739; Estate of Darms, supra, 247 Cal.App.2d 254 at p. 257, 55 Cal.Rptr. 463.) So doing, however, we must consider the extrinsic facts agreed upon below, because of their obvious relevance to the issue of Ernest's testamentary intent. Including them, the facts shown are as follows:
On and before July 29, 1927, Ernest Wolfe was a resident of San Mateo County. He owned real property in Menlo Park. He was single and had no children, never having married. Herman Wolfe was Ernest's brother. Herman was alive on July 29, 1927, but has since died. On that date, Ernest wrote and mailed the above quoted letter to Herman. The letter was entirely written, dated and signed in Ernest's handwritting. On or about July 29, 1927, Ernest left his last place of residence, disappeared, and has not been seen or heard of since. In 1965, he was adjudicated to be a missing person within the meaning of chapter 2 of division 2a of the Probate Code (commencing with section 280). 2
Our interpretation of the letter is guided by the following principles: An instrument may be admitted to probate as a will if it appears from the instrument's terms, viewed in the light of the circumstances of its execution, that it was executed with testamentary intent. (Estate of Sargavak (1950) 35 Cal.2d 93, 95--96, 216 P.2d 850, 21 A.L.R.2d 307; Estate of French (1964) 225 Cal.App.2d 9, 15--16, 36 Cal.Rptr. 908; 1 Page, Wills (3d ed.) § 5.6, p. 172.) The burden of proving the necessary element of testamentary intent rests upon the proponent of the alleged will. (Estate of Beebee (1953) 118 Cal.App.2d 851, 861, 258 P.2d 1101.)
The basic test of testamentary intent is not the testator's realization that he was making a will, but whether he intended by the document in question to create a revocable disposition of his property to take effect only upon his death. (Estate of Button (1930) 209 Cal. 325, 331, 287 P. 964; Estate of Sargavak, supra 35 Cal.2d at p. 95, 216 P.2d 850; Estate of Crick (1964) 230 Cal.App.2d 513, 516, 41 Cal.Rptr. 120.) Thus, a document written in the form of a letter, and which meets formal holographic requirements (as the letter before us does), will be admitted to probate if the requisite testamentary intent appears. (Estate of Button, supra, 209 Cal. at pp. 332--333, 287 P. 964; Estate of Crick, supra; 1 Page, supra, § 6.21, p. 276; Atkinson, Wills (2d ed.) § 47, p. 207; Annotation, 'Letter as a will or codicil,' 40 A.L.R.2d 698.)
If testamentary intent adequately appears, a document's testamentary character is not affected by the fact that in includes nontestamentary matters (Estate of Button, supra, 209 Cal. at pp. 330--331, 287 P. 964; Estate of Sargavak, supra, 35 Cal.2d at p. 101, 216 P.2d 850; Estate of Schultz (1960) 54 Cal.2d 513, 516, 6 Cal.Rptr. (fn. 2).) No particular words are necessary to show testamentary intent. (Estate of Button, supra, 209 Cal. at p. 331, 287 P. 964; Estate of French, supra, 225 Cal.App.2d at p. 15, 36 Cal.Rptr. 908.) When an instrument shows on its face--as in the case of the letter before us--that it was written by an inexperienced or illiterate person, it may be construed more liberally than if it had been drawn by an expert. (Estate of Lampkin (1962) 203 Cal.App.2d 374, 376, 21 Cal.Rptr. 513 (citing 1 Page, supra, § 6.2, p. 228).)
Under the foregoing rules and the known circumstances in which Ernest Wolfe wrote the letter of July 29, 1927, we interpret it as his will. He wrote '(I) am leaveing my Place in Menlo Park for you(.)' The words 'for you' sufficiently qualify 'am leaveing' to demonstrate that Ernest intended the verb to effect a disposition of the 'Place,' and not to refer to his departure from it. Use of the word 'leave' in a dispositive sense, although not conclusive (Brandt v. Brandt (1927) 85 Cal.App. 720, 729, 260 P.2d 342), has been recognized as sufficient evidence of testamentary intent. .)
Ernest also wrote '(I)f I never call for it * * * the place is yours(.)' Had he made a 'call for it' in later years, his previous testamentary disposition of the place would have been revoked. The question here is not whether a 'call' for the property would have actually effected a revocation of the disposition made in 1927, but whether Ernest intended that result. The word 'never' encompassed the reach...
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