Opinion
Hearing Granted by Supreme Court Jan. 17, 1929.
Appeal from Superior Court, Los Angeles County; Walter J. Desmond, Judge.
Proceeding by George E. Heuler for the probate of the will of George T. Heuler, deceased, opposed by Christina Heuler, contestant. From an order admitting the will to probate, contestant appeals. Reversed.
COUNSEL
Merriam, Rinehart & Merriam, of Pasadena, for appellant.
Horace S. Wilson and Constan Jensen, both of Los Angeles, for respondent.
OPINION
HOUSER, J.
This is an appeal from an order admitting to probate, as the last will of George T. Heuler, deceased, a certain document denominated a "marriage contract."
Before considering the contents of the writing in question, it may be well to freshen the recollection with reference to the prevailing legal principle which may be applicable to the situation herein presented: A will is an instrument in or by virtue of which a qualified person legally and intentionally directs the disposition of his property, to become effective only following the death of such person. Although in its preparation it is unnecessary that any particular form of words be used, it is indispensable that it may be readily discernible therefrom that the primary purpose of the testator be that he make a will, and that either in and of itself, or in connection with circumstances surrounding its execution, the very paper or document be clearly, unmistakably, and with legal certainty, expressive of the animus testandi, or intention of the maker thereof to give direction for the disposition of his property after his death. Estate of Henning, 186 Cal. 307, 199 P. 39; Estate of Lowe, 178 Cal. 111, 172 P. 583; In re Keith, 173 Cal. 276, 159 P. 705; Estate of Meade, 118 Cal. 428, 50 P. 541, 62 Am. St. Rep. 244; In re Richardson, 94 Cal. 63, 29 P. 484, 15 L. R. A. 635; In re Major’s Estate (Cal.App.) 264 P. 542; Estate of Beffa, 54 Cal.App. 186, 201 P. 616.
With so much in mind, and for the purpose of determining its legal effect so far as its testamentary qualities are concerned, the instrument which was presented for probate herein may be considered. It was in German script, dated and written by Heuler, signed by him and his intended wife, and later "witnessed" by two persons. The English translation of the document follows:
"Marriage Contract.
"The following agreement between George T. Heuler, on the one part, and Christina Wagner on the other part, was effected on Monday, the 4th of January, 1909. George T. Heuler is entering the state of matrimony on Tuesday, the 5th of January, 1909, after this mutual, and legally witnessed agreement. If George T. Heuler departs from this life first, so shall Christina Wagner receive her legal third share only under the following conditions. After an honest, conservative estimate shall the third part of my estate be converted into cash and given over to a trust company where Christina Wagner may draw the interest thereof every six months until the end of her life.
"The other two-thirds shall be divided equally among my three children out of my first marriage, or their heirs, on their survivors. Also, shall my three children, George, Leo, Erna, after the death of the above mentioned Christina Wagner, receive the above mentioned capital.
"If, on the other hand, Christina Wagner departs from this life before George T. Heuler, so shall George T. Heuler, her husband, inherit all moveable property which she now owns or shall own, without reservation, without interference from her relatives.
"[Signed] George T. Heuler.
"(_____)
Christina Wagner."
At the time the document herein was executed George T. Heuler was an unmarried man of the age of 59 years. Prior to the execution of the instrument, Heuler had been twice married-first, to a woman by whom later he had three children, including the appellant herein; and, secondly, to another woman by whom he had one child. From each of such women he had been divorced. It was his expectation that on the day following the date of the "marriage contract" he would marry the woman with whom he was making what may be termed the antenuptial agreement. After this agreement was executed, Heuler sent a copy thereof to each of his three children by his first wife. The record does not affirmatively disclose that Heuler ever spoke of the document as constituting a will. To the contrary, his widow testified that she never heard him refer to the instrument as his will. She further testified in part:
"He came in the kitchen and told me to sign that, and he didn’t give me a chance to read it."
At the time when the "marriage contract" was executed, Heuler said nothing to Mrs. Heuler about making a will, nor did he at the time of its execution or at any time thereafter ask her to make a will. Some 15 years after the instrument in question was executed, Heuler personally dictated another instrument purporting to be a will, but which, because of defects in the manner of its attestation by witnesses, was refused probate. The opening statements of that will were:
"This is my last will and testament. I hereby name my son George E. Heuler as executor of my will and property, personal and real estate, stocks, bonds, etc. The property is to remain intact and the income thereof of my entire property and belongings is to defray the living expenses of my wife, Mrs. Christina Heuler, born Christina Wagner, until her death."
Prior to the time when the last-mentioned instrument was signed by Heuler, on several different occasions, he spoke of the advisability, if not of the necessity, of his making a will, in order not only that his wife might be adequately protected, but as well for other purposes.
Considering the instrument itself, together with the evidence relating to its execution as hereinbefore outlined, it would appear that, with the possible exception hereinafter noted, in no case in the state of California has the court, in announcing appropriate legal principles or conclusions, gone so far as to indicate that the document in question should be regarded and probated as a will. To the contrary, both the Supreme Court and the Appellate Courts of this state have been most consistent in declaring that documents much stronger in language, executed in circumstances far more favorable to a conclusion of "animus testandi" on the part of the maker thereof, failed to comply with the requirements necessary to the establishment of a legal will. A reference to some of the authorities may be helpful.
In the case entitled In re Richardson, 94 Cal. 63, 29 P. 484, 15 L. R. A. 635, it appears that a man wrote a letter to his sister, a copy of which is as follows:
"Los Angeles, Cal., October 1, 1890.
"Nina-I wrote you yesterday, hastily; answer my letter at once; I want to know everything about mother, and all about you-your children. I have reached the point of perfect independence, pecuniarily. My health is probably ruined, and I want to anticipate possibilities. You and your children get everything. Your boy I want given the best of educations. I would like him to go to Harvard. I would like to have him a lawyer; don’t bring him up a prejudiced Southerner; but teach honor; make it dearer than life, and he must, with the blood in his veins, be a man. Write me. As soon as I possibly can, I will be in Savannah. Brother."
Regarding the sufficiency of the document as a legal will, the following excerpts are taken from the opinion of the Supreme Court:
"The language of the letter which is propounded as the last will and testament of the deceased is not, to our minds, testamentary in its character.
"There is nothing in the circumstances and surroundings of the writer which unmistakably evince that it was his intention that the letter in question should be a testamentary disposition of his estate. ***
"He was not in extremis, nor is there anything to show that he contemplated immediate or very proximate dissolution, which might necessitate a final disposition of his estate. ***
"It is not for courts to declare that to be a testamentary disposition of his estate when it does not clearly appear that such was the intention of the individual executing it."
In each of several other California cases the language appearing in the document itself, as well as attendant circumstances, were at least as expressive of "animus testandi," as were the words and the conduct of George T. Heuler in the instant case. Nevertheless each of such documents was refused probate as a will. In this connection, attention is specially directed to Estate of Meade, 118 Cal. 428, 50 P. 541, 62 Am. St. Rep. 244; Estate of Anthony, 21 Cal.App. 157, 131 P. 96; In re Major’s Estate (Cal.App.) 264 P. 452; Estate of Seiler, 176 Cal. 771, 170 P. 1138, 179 P. 389; Estate of Henning, 186 Cal. 307, 199 P. 39. See, also, Estate of Branick, 172 Cal. 482, 157 P. 238; Estate of Wheatley, 184 Cal. 399, 193 P. 934; Estate of Scott, 128 Cal. 57, 60 P. 527.
Although not set forth in the opinion, from the record in Estate of Lowe, 178 Cal. 111, 172 P. 583, it appears that the facts were somewhat analogous to those in the instant case. Therein a husband and a wife each signed an instrument purporting to be an "agreement and lease," by which the property rights of each of the parties one toward the other were "settled," and a 50-year lease of certain property was demised by the husband to the wife, with the apparently attempted proviso that, if the wife should die before the end of the term, the lease should terminate. The instrument also contained a paragraph which was strikingly similar to that which in the instant case is relied upon as showing testamentary intent. It is as follows:
"It is understood that by reason of this settlement all the separate property of the husband will at his decease, subject to said lease, go to his children, unless otherwise disposed of by him, and all the separate property of the wife, will at her decease go to her heirs at law (cutting off the husband) unless otherwise disposed of by her."
In addition thereto, at a date several years subsequent to that of the original instrument the husband signed and appended thereto a paper of which the following is a copy:
"It is further provided and mutually agreed by and between the said parties above named in the annexed agreement and lease, that, in addition to the same, for the better support during the lifetime of the said Louesa Lowe, his wife, that in case she shall survive the said Amos Lowe, her husband, she, the said wife, shall be allowed out of the income of the property of Amos Lowe, her husband, Twenty Dollars monthly each and every month during her lifetime, also the household goods."
In ruling upon the sufficiency of the instrument there propounded as a will, the Supreme Court said:
"*** The writing on its face purported to be a mere agreement between husband and wife for the support of the latter, and was annexed to an earlier writing of like character signed by the two. *** Manifestly the paper was not drawn and signed animo testandi "-citing cases.
Although in Estate of Spitzer, 196 Cal. 301, 237 P. 739, the language used by the testator in a letter written by him perhaps was no stronger in its indication of testamentary intent than was that used by either of the persons in either of the authorities to which reference herein has been had, nevertheless, from evidence and declarations made by the testator in connection therewith, as well as from other surrounding circumstances, the court was of the opinion that such letter was sufficient to constitute a holographic will. See, also, Estate of Skerrett, 67 Cal. 585, 8 P. 181.
Considering the language of the instrument in question in the instant case, it will be noted, first, that its author called it a "marriage contract." Thereafter, in two different places therein, the instrument was referred to as an "agreement. " He said "the following agreement *** was effected on Monday, the 4th of January, 1909," and that he was "entering the state of matrimony on Tuesday, the 5th of January, 1909, after this mutual and legally witnessed agreement. " Although a later document dictated by Heuler was described by him as his "last will and testament," and by which he appointed an "executor," in no place in the instrument in question may any such words as "will," "testament," or "executor" be found. As to declarations of the author concerning the nature of the instrument here propounded as a will, we find that he was absolutely silent; whereas, in a similar connection with reference to the other instrument, the evidence shows that on several occasions preceding its attempted execution he expressed his ideas very clearly and definitely. The purport of the instrument in question is that Heuler and his intended wife, having theretofore agreed upon certain matters ("effected on Monday"), they will be married on the day following, "after this mutual and legally witnessed agreement" has been properly executed. He then attempted to reduce to writing that which theretofore had been agreed upon by him and the woman whom he expected to marry. In substance, he first said that it was agreed that, if he "departs from this life first," his intended wife should be entitled to a life estate in one-third of his estate, with the remainder to certain of his children, and that as to two-thirds of his estate it "shall be divided equally" among his three children. Then follows that part in which it was agreed that, if "Christina Wagner departs from this life before George T. Heuler, so shall George T. Heuler, her husband, inherit all movable property which she owns," etc. So far as may be readily seen, other than the word "inherit," used once only, together with the words "departs from this life," the instrument is devoid of any language which would indicate testamentary intent either on the part of its author or on the part of Christina Wagner. Assuming (even as against the evidence) that that part of the instrument in which the word "inherit" appears was the voluntary act and deed of Christina Wagner, at most it was but declaratory as to her intention with reference to the final disposition of her separate property. But it will be noted that even such language purports to deal with the property of Christina Wagner only. Manifestly, it would not be competent by his will for George T. Heuler to direct the disposition of the property of Christina Wagner after her death; and there is no evidence that Christina Wagner ever considered the instrument in the light of a testamentary or other disposition of her property. It may be that by some other instrument the parties to the "marriage contract" contemplated a joint, positive direction for the disposition of the several properties of each of them after the death of either or both of them; but, in the language of some of the cases to which reference has been had, there is nothing in the very paper itself which clearly manifests such an intention. As indicated in Estate of Henning, 186 Cal. 307, 199 P. 39, to which attention has been directed, it is apparent that the parties were "contemplating matrimony," and that the "main question" in the mind of each of them, or at least in the mind of Heuler, was to reduce to writing that which theretofore orally "was effected on Monday" between them. With reference thereto, the statement made by the court in the somewhat similar case of Estate of Meade, 118 Cal. 428, 50 P. 541, 62 Am. St. Rep. 244, is that "such being the principal purpose of the writing, it should certainly be made plain by apt words " that incidentally he also intended the paper as his last will. Furthermore, as is also suggested in that case, it is "hardly conceivable" that a man of the apparent intelligence and education of Heuler, possessed of his evident familiarity with legal terminology ordinarily employed in the drafting of a will, would have so indistinctly and inappropriately expressed his wishes respecting the disposition of his property after his death. The language employed in the "marriage contract" is more or less appropriate to an antenuptial agreement. It is lacking in the legal requirement that, in order to constitute a will, primarily it must be clearly and unmistakably evincive of a present desire there expressed to direct the final disposition of his estate after the death of its author. It should therefore be denied probate as a last will and testament.
The order is reversed.
We concur: CONREY, P. J.; YORK, J.