Opinion
Rehearing Denied Dec. 26, 1962.
Zeff, Halley & Price, Francis W. Halley, Modesto, for appellant.
Collier & Tosaw, Frank B. Collier, Modesto, for respondent.
CONLEY, Presiding Justice.
Laura Crosby, the named beneficiary in a purported second codicil to the last will of The document was written on printed stationery of the Hotel Covell. The decedent drew lines through the printed words 'A.A.A. Approved,' at the upper left corner of the paper, and through the printed words 'Hotel Covell,' which appeared across the center near the top of the paper. The only printed matter then still remaining on the stationery were the words 'Modesto, California,' appearing on the date line at the top of the page and an advertising slogan at the bottom of the letterhead: 'The Hotel that Has Everything (Almost).' This document names Laura Crosby as beneficiary to the extent of all of the decedent's 'Insurance Securities Trust Fund of San Francisco'; she is not otherwise named in any testamentary document made by Mr. Baker.
The trial court held that the advertising slogan printed at the bottom of the letterhead, 'The Hotel that Has Everything (Almost),' did not form a part of the will in that it was underneath the signature of Mr. Baker and that there was nothing in the record which evidenced an intention on the part of the testator to incorporate that printing. However, the court did find that the decedent intended to include the printed words 'Modesto, California,' as part of the codicil, basing its decision upon the inference that because the other printed words appearing at the top of the letterhead were stricken out by Mr. Baker, he wished to retain the words 'Modesto, California,' as a part of the codicil and that as those words were printed, the document was not entirely in the handwriting of the decedent and failed to meet the qualifications of a holographic will. Section 53 of the Probate Code reads as follows:
'A holographic will is one that is entirely writen, dated and signed by the hand of the testator himself. If is subject to no other form, and need not be witnessed. No address, date or other matter written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will.'
The other two documents, which had been prepared by a lawyer and which were admitted to probate, each contained a clause in which the place of execution, 'Modesto, California,' was mentioned; the court could well conclude that from this experience the decedent thought that a specification of the place of execution was a necessary part of a will and that this inference further indicates his intention to incorporate the words 'Modesto, California,' in the codicil.
While an interpretation of a purported testamentary writing that renders it effective is to be preferred to a construction eliminating the possibility of probate (Estate of Janes, 18 Cal.2d 512, 515-516, 116 P.2d 438), this does not modify the mandate of the law with respect to the required form of a holographic will (Estate of Towle, 14 Cal.2d 261, 267, 93 P.2d 555, 124 A.L.R. 624). It is the duty of a probate court to apply pertinent rules of law to the instrument as a whole as executed by the decedent and to read the instrument as he wrote it and not as he should have written it in order to cause it to comply with established legal requirements (Estate of Bower, 11 Cal.2d 180, 182, 78 P.2d 1012).
While the mere presence of printed words on the page upon which a holographic will is written does not in and of itself invalidate the will (Estate of Oldham, 203 Cal. 618, 621, 265 P. 183; Estate of De Caccia, 205 Cal. 719, 724, 273 P. 552, 61 A.L.R. 393; Estate of Durlewanger, 41 Cal.App.2d 750, 107 P.2d 477; Estate of Williams, In Estate of Bower, supra, 11 Cal.2d 180, 185, 187, 78 P.2d 1012, it is said that while under the Oldham and De Caccia cases, supra, the mere presence of printed matter on the page used by the testator is not fatal to the validity of a holographic will, if such printed matter is directly or indirectly incorporated in the provisions written by the hand of the decedent, the purported will is in fact rendered invalid. The opinion further holds that the portion of section 53 of the Probate Code reading as follows: 'No address, date or other matter written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will,' shows that if printed matter is incorporated, the document is rendered void. (See also Estate of Goldsworthy, 54 Cal.App.2d 666, 670, 673-674, 129 P.2d 949; Estate of Thorn, 183 Cal. 512, 192 P. 19; Estate of Bernard, 197 Cal. 36, 239 P. 404.)
The trial court included the following finding of fact in its order:
'* * * that the document dated the 2nd day of January, 1962, which purports to be holographic, was entirely written, dated and signed by the hand of said decedent, except the printed words 'Modesto, California,' and the printed words 'The Hotel that Has Everything (Almost)'; that said document was was written on the stationery of Hotel Covell; that decedent deleted therefrom the printed words 'A.A.A. Approved,' and the printed words 'Hotel Covell,' but failed to delete the printed words 'Modesto, California,' and the printed words 'The Hotel that Has Everything (Almost)'; that the latter words appear below the signature of decedent; that the decedent intended to incorporate the printed words 'Modesto, California,' into said document and to make them a part thereof; and that by reason thereof said document dated the 2nd day of January, 1962, was not entirely written, dated and signed by the hand of the decedent himself.'
In his memorandum opinion, to which we refer for the purpose fo ascertaining the process by which the order denying probate was decided upon (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740, 750, 47 P.2d 273; Estate of Felton, 176 Cal. 663, 667, 169 P. 392), the trial judge says:
'I have reached the conclusion that this case is governed by the rules laid down in the Estate of Bower, 11 Cal.2d 180 [78 P.2d 1012] (1938). In this case the Probate Court in an effort to make a holographic will good and to carry out the intention of the testator, held in effect that certain printed matter appearing on the face of the codicil was non-essential and therefore inconsequential as far as the validity of the will was concerned. However, the Supreme Court unanimously reversed the decision. This case held (page 182 [78 P.2d page 1013]):
'* * * It is the function of the court to apply the pertinent rules of law to the entire instrument as executed by the decedent and not as deleted and reconstructed by the court * * *.'
'It further laid down the principle that the rule was not whether the printed words ('Modesto, California' in this instance) were necessary to the execution of the document; but whether the decedent himself considered them as part of the document. In other words, what was the printed matter expressly or impliedly incorporated into the codicil?
'The question in this case is therefore the following: Does it appear from the face of the instrument itself 'It will be conceded that if the decedent had not crossed out the words 'HOTEL COVELL' at the top of the page, there is no question but that the codicil would be good under the wording of section 53 of the Probate Code, as above set forth.
'Likewise, if there was simply the lone words 'Modesto, California,' printed on the paper, followed by the date or other writing by the decedent, there is no question that the codicil would be held good under the rules set forth in the Estate of Oldham, 203 Cal. 618 [265 P. 183], followed by the Estate of De Caccia, 205 Cal. 719, [273 P. 552, 61 A.L.R. 393].
'Also, if he had crossed out both the words 'HOTEL COVELL' and the words 'Modesto, California,' the will would likewise have been good; because it would clearly appear that he did not intend them to be part of his will.
'However, the decedent did cross out the words 'HOTEL COVELL' and he left standing the words 'Modesto, California,' just before he wrote the date. Under these circumstances, as a matter of reason and common sense, what other conclusion can be reached except that he intended that the printed words 'Modesto, California,' were to be a part of the Will? The Court cannot see how any other reasonable conclusion can be reached.'
In Estate of Goldsworthy, supra, 54 Cal.App.2d 666, 670-671, 129 P.2d 949, 951, in upholding the finding of the probate court that the tendered document did not qualify as a testamentary disposition, the court points out that the rule is well established in California that a holographic will must comply strictly with the requirements of section 53 of the Probate Code; there the appellant had contended that the trial court was called upon to do nothing more than to construe the written document and that the question of whether or not it complied with the requirements of the code section was one of law and that the appellate court was therefore free to disregard the findings of the lower court. In abolishing this contention, the court Said:
'It is well settled that the question of the due execution of a will is one of fact, and that he trial court's determination on this issue cannot be overturned unless that determination is without support in the evidence. In re Cullberg's Estate, 169 Cal. 365, 146 P. 888.
'In Re Streeton's Estate, 183 Cal. 284, 191 P. 16, no evidence was offered on the issue of execution except the document itself. The Supreme Court stated (183 Cal. at page 289, 191 P. at page 18): 'the finding of the trial court to the effect that the testator signed his name at the top of the will with the intention of authenticating the instrument was sustained by a 'positive and satisfactory inference' arising from the face of the document itself.' (Italics added.)
'In Re Maguire's Estate, 14 Cal.App.2d 388, 58 P.2d 209, one of the questions presented was whether the date contained on an envelope in which the will was found was to be considered a part of the will. Although no direct evidence was offered on the point, the court held that the determination of the trial court to the contrary was a question of fact which could not be overthrown on appeal, even though the question might have been determined either way by the fact finder.
'In the case at bar the trial court found that the decedent intended to incorporate the printed matter on page one of the form and make it a part of his will. The fact that decedent did In the Goldsworthy case, supra, 54 Cal.App.2d 666, 673-674, 129 P.2d 949, 953, the court demolishes the suggestion that the amendment of section 53 of the Probate Code in 1931 softened the previously existing law relative to the strict requirements of holographic wills as follows:
'The appellants also urge that the Legislature, by the addition of the concluding sentence of section 53 of the Probate Code, intended to establish a more liberal rule in the construction of holographic wills (In re Durlewanger's Estate, supra [41 Cal.App.2d 750, 107 P.2d 477]), and that, since the portion of the document in the handwriting of the decedent constitutes a complete disposition of his property, the printed portion should be treated as surplusage.
'We do not believe that the Legislature intended in anywise to change the law by its amendment of section 53 in 1931. The history of the amendment shows that said sentence was added in 1931, like many other provisions of the Probate Code, for the purpose of codifying the then existing law. This is the view expressed by Mr. Justice Curtis in Re Estate of Towle, 14 Cal.2d 261, 93 P.2d 555, 124 A.L.R. 624. In re Bower's Estate, supra, [11 Cal.2d 180, 78 P.2d 1012] expressly holds that this sentence was added to codify a rule announced in the Re De Caccia's Estate, 205 Cal. 719, 273 P. 552, 61 A.L.R. 393. To sustain the will in this case would require us to read into the statute, language which is not to be found therein.'
The trial court has found that the codicil dated January 2, 1962, was entirely written, dated and signed by the testator except for the printed words 'Modesto, California,' that by crossing out all other printed words at the top of the paper while retaining the printed names of the city and state, the testator showed his intention to incorporate these printed words in the document and consequently that the instrument does not comply with the requirements of Probate Code section 53. '* * * the circumstances and all other legitimate inferences to be drawn from an examination of the document itself support the finding of the trial court.' (Estate of Goldsworthy, supra, 54 Cal.App.2d 666, 670-671, 129 P.2d 949, 951.)
While the application of this rule of law may seem harsh in that the clear intention of the testator thus becomes ineffective, it is for the Legislature and not for the courts to consider whether the statute should be amended. (Biyeu v. State Employees' Retirement System, 58 A.C. 632, 643, 25 Cal.Rptr. 562, 375 P.2d 442; People v. Sidener, 58 A.C. 659, 666, 25 Cal.Rptr. 697, 375 P.2d 641.)
Even if it be thought that the court below could have drawn a different and opposing inference, we are concluded by the finding actually made, since it has substantial evidentiary support. The California Supreme Court recently decided Estate of Schultz, 54 Cal.2d 513, 518, 6 Cal.Rptr. 281, 284, 353 P.2d 921, 924, 81 A.L.R.2d 1106, an appeal from an order admitting to probate two holographic documents as the last will of a decedent. A brother had offered a formal witnessed will for probate, and a friend had tendered two later documents in the deceased's handwriting; the court below denied probate to the witnessed will on the ground that it had been revoked by the handwritten
'At the most, this is a case in which the evidence before the probate court would support conflicting inferences on the questions posed by appellant, but where either of two inferences may be reasonably drawn from the evidence by the trier of the facts, the reviewing court will not substitute its deductions for those of the trial court. Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689.'
The order denying probate to the alleged second codicil to the will is affirmed.
BROWN, J., concurs.
STONE, Justice.
I dissent. The last sentence of Probate Code section 53 provides that 'No address, date or other matte written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will.' (Emphasis added.)
Interpretation of the emphasized language, particularly the word 'incorporated' is, of course, the key in determining whether or not the printed words 'Modesto, California' invalidate the holographic will. It appears to me that the reasoning of the Supreme Court in Estate of De Caccia, 205 Cal. 719, 273 P. 552, 61 A.L.R. 393, is applicable here. In De Caccia the controversy hinged upon the words 'Oakland, California Febr. 14th 27.' The words 'Oakland, California' were printed, and the date was inserted in the handwriting of the testator. In determining that the printed words were not incorporated in the document in such manner as to invalidate it as a holographic will, the Supreme Court had this ot say at page 726, 273 P. at page 555:
'The foregoing excerpt from Estate of Oldham, supra [203 Cal. 618, 265 P. 183], we feel is directly applicable to the facts in the present proceeding in so far as it refers to the position of the date following the printed matter in the purported will. The mere fact that the decedent placed the date immediately after and upon the exact line with the printed words in the instrument is not in itself sufficient to show that he thereby intended to make said printed words a part of said instrument. Nowhere in said instrument is there any reference made to the printed words upon the sheet of paper used by said decedent for the purpose of writing his will. The printed words are in no way essential to the validity of the instrument as an holographic will, and we are not to presume that the decedent made them a part of the instrument he executed without some evidence appearing upon the face of the instrument itself manifesting such an intention. The mere presence of printed matter upon stationery used by a person for the purpose of writing his holographic will which forms no part of the written instrument, and to which no reference directly or indirectly is made in the written instrument, will not destroy the effect of such instrument as an holographic will.' (Emphasis added.)
(See also Estate of Durlewanger, 41 Cal.App.2d 750, 756, 107 P.2d 477.)
Following the reasoning of De Caccia and Durlewanger, I would hold that the printed words 'Modesto, California' are not incorporated in the provisions of the will before us since there is no reference to these words at any place in the will; they are surplusage. For example, had the testator bequeathed furnishings 'in my home in the above-named City,' then the words 'Modesto, California' at the top of the page would have been incorporated in the provisions of the will. No such reference is made.
Probate statutes relating to holographic wills, and court decisions pertaining to the 'It has long been the consistent policy of our courts to give that construction to a will which will make it valid and will accomplish the apparent testamentary intent if such construction can be had within the framework of the statutory requirements.' (Estate of Williams, 198 Cal.App.2d 238, 241, 17 Cal.Rptr. 716, 718.)
(See also Estate of Fay, 145 Cal. 82, 85, 78 P. 340; Estate of Janes, 18 Cal.2d 512, 116 P.2d 438; Estate of Wilkinson, 113 Cal.App. 645, 646, 298 P. 1037; Estate of Moody, 118 Cal.App.2d 300, 305, 257 P.2d 709.)
The majority opinion suggests that further legislation is required in order to arrive at the result expressed in this dissent. One reason I do not agree that any legislation is necessary is that Estate of Goldsworthy, 54 Cal.App.2d 666, at page 674, 129 P.2d 949, at page 953, upon which the majority opinion is so largely predicated, holds, that the concluding sentence of Probate Code section 53 was added to codify the rule announced in De Caccia, supra. In light of the reasoning expressed by the Supreme Court in De Caccia, it appears to me that Probate Code section 53, as it now stands, supports the validity of the will before us.
I would reverse the order and admit the will to probate.
Rehearing denied; STONE, J., dissenting.