*1 May 31, 1956.] Third Dist. No. 8689. [Civ. STAUFFER, of HARRY C. Deceased. R. N. PHIL HENRY et v. MYRA al., Appellants, STAUFFER
POT al., Respondents. et *2 A. Lewis, Brown, Mull, Jr., & M. and
Lewis, Lewis & Pierce Appellants. Fleury & for Wilke Diepenbrock Anthony Kennedy and & Wulff for Devlin, J. Respondents. by of a
PEEK, J. the conclusion contest instituted At Harry decedent, Stauffer, C. the court heirs at law by judgment probate of the will offered by denied its Kirtlan, except Hilda as to proponents, N. and R. for Proponents’ motion a new trial was items thereof. two denied, appeal and followed. this by summary pertinent facts as shown the rather
A eight 25, 1944, March indicates voluminous record approximately was death and he years prior to his when Harry age, decedent, Stauffer, C. executed years of large family; however, one of a question. in He was by only sister, he one at time of his death was survived by aged 87, contestants, and Myra Henry, one S. con- are also nephews, three whom numerous nieces and any contact relatives had herein. None these testants death, Harry years prior his and for more than 15 1952, January none of them attended in at the time thereof had any way. his in He been recognized or death the funeral marriage one divorced, and and his son had married pharmacist graduate He was a at predeceased him. pharmacy in Prom operated a Sacramento. one time disposed pharmacy, 1929 he lived with he until when district, in Pair a suburban Sacramento friend Oaks jobs for his friend. In 1921 he worked at odd area, slightly left him disabled. a stroke which suffered regular night watchman, but he had employed he was In 1934 to his mother’s home he returned work thereafter. he with her and his unmarried where lived Sacramento sister, style, Ida. three-story This home which was an old by family long mansion had been used period for a time and was across the street from the real estate office of proponents appellants herein, one Philpot. B. N. approximately From Philpot, the request of the mother, family handled all of the Stauffer affairs.
In the thirties, following request middle the mother for advice and affairs, Philpot suggested assistance her building home be razed and a store and office erected on Through the site. project his efforts such a was ultimately financed completed in 1938 and A 1939. new purchased Harry home was and Ida lived there her until Shortly Harry question after executed the will this death. house sold, and from then on he lived himself until During death in 1952. time, judge all noted opinion, Philpot his memorandum attended to all business pertaining property. prepared He matters the deed by which mother transferred title of Harry’s sister, Lillie; also the deed which Lillie transferred sister, Ida; same to the and the deed took from Ida. All of these kept by title deeds were *3 in subsequently his office and he had them recorded. He negotiated loans, employed contractors, secured tenants, pre- pared leases and all documents necessary to the accomplishing of purposes. these
Although the record contains no evidence as to the value property at the time the will was executed, it does appear largely through Philpot’s efforts the value of the property from approximately $25,000 rose in early 1930s approximately $120,000 to in 1949. All of the funds received belonged rentals and other sources which to the Stauffer placed family personal in were a bank account maintained Philpot, and all funds disbursed for the benefit of the paid by Stauffers Philpot were out of this account. The appellant Kirtlan, Hilda Philpot’s longtime who was secre- personally tary, kept the various accounts Following involved. death, Philpot Ida’s management his continued of the Stauffer family affairs. There during was evidence this entire Harry quite time drank heavily responsibility took no whatsoever for his estate, allowing Philpot complete man- agement and control thereof. In Harry’s addition he had power attorney. Harry’s
At the time of the execution will, his estate consisted of property question in which for rented a per years month with some addi- $761 term of at the rate adjacent parking area; for received as rental an
tional funds property, and, prior to sale of the 34th street residential per month was received as rent for a $25 further sum of There were dividends which on the rear of the lot. small house paying son Harry stock; on some his had been collected support. This per Philpot month to for his father’s $35 son, meantime the stopped upon death of the but building $1,845 per to had increased month rental on the store per Against month. this to were parking $125 and the lot necessary on payment $45,000 for loan the disbursements expenses attendant such as against property and the During year to prior the execution taxes utilities. average monthly an which $124 received by calling amounts twice a week at small he obtained Philpot’s office. 10, 1938, gave Philpot deed Ida to certain
On November according County which, Philpot, grazing land in Glenn September for of 1942 Ida subsequently $500. sold he gave promissory note secured a second deed Philpot a also $23,000 in the sum of of trust the Sacramento per compounded per the rate cent with interest According note and deed of trust annum. suggestion because, stated, given to him at Ida’s she were for money payment desired to make no she had family during her for which he lifetime services to compensation. no received will, devised, decedent Item to
By the terms improved property (the 34th real Snyder, certain Jessie prior death) to his “For was sold property which street By during my me life ...” Item 3 he kindnesses shown improved prop- Kirtlan business Philpot and devised to my family me for the erty, “For services rendered compensation paid for has been past years, fifteen my during to me life- and for kindnesses shown them, gave Littlefield, David By Item 4 he Michael time ...” placed $5,000 to be trust minor, the sum *4 by him until David reached and invested and to be handled gave he named majority. By Item 5 to certain relatives his By provided that if Item was $5.00 sum of each. the it, estate warrant” “sufficient revenue the there was Henry. monthly sister, Myra to his S. paid should be $50 that residue his Lastly provided he all the by Item among Phil- share and share alike” be “divided should estate Gladys Wollenberg, daughter-in- former pot, Snyder and his bond. Philpot He also as executor without law. named According Philpot, concerning the the circum- evidence surrounding stances the execution the will was that several saying prior Harry Philpot’s office months thereto called at will; that desired to make that he he knew about the $23,000 note; Philpot him if he and that told would tell Miss type wanted, Kirtlan he would it for him. This what she was he corroborated Kirtlan who stated had also talked her; that he came to the office thereafter with a draft of prepared will which he had in his own handwriting; that thereupon typed merely she will, copying the from the draft Harry given her; following had the execution Harry original took the him, leaving draft with Philpot. executed will with particular noted in court similarity Harry’s between will and that of Ida which typed acknowledged Kirtlan had likewise Ex- 1938. cepting dispositive clauses, practically two wills were duplicates as the stated, trial court for word, phrase “word for phrase, and for spacing clause clause. Even the punctuation including are identical, of put- odd manner ting Philpot (“R”. “N”.) quotation initials of marks.”
In discussing question influence, undue noted clearly court the evidence established the existence of a relationship confidential Harry between Philpot which was parties, admitted all and therefore activity preparation and Kirtlan in the will and profits the undue granted which the will to them presumption raised a upon undue and cast proponents the dispelling burden of the same. To overcome presumption Philpot and Kirtlan contend pro that the visions of the will are unnatural an abiding dislike for relatives, quite and hence was natural for only him to persons reward the who had been helpful him; profit that the evidence is at best only conjectural since was no evidence there as to the value at the executed; time the will was that while may there have opportunity been for and Kirtlan to Harry’s testamentary control act, standing that fact alone, coupled unless showing activity with a on their insufficient; and Harry’s there was no evidence as to susceptibility to influence or subversion—in fact all it was contrary, specifically the court noted this character istic. evidence, summation of the above-mentioned
40 opinion, further court, trial in its memorandum noted that surrounding for the circumstances the execution were facts,” of the would a “close case on the will, this be but destroys such circumstances were “so incredible testimony.” of their favorable effect other Although by the case made out was not a contestants agree on strong one, point are to we constrained long of court. The of the conclusion control man- Harry’s by Philpot, agement participation of affairs of preparation gift of the will proponents in the actual and the them, effect, specific of his for the to entire reason estate family for services rendered to himself and that it was his no Philpot compensation, for which received when given years Ida had fact less than two before a note $23,000, of bequest trust deed the sum of $50 Myra if there “sufficient a month revenue ... to to it, present sufficient to a substantial were conflict warrant” knowledge to of his of true state in the evidence influence, any, if on the affairs and as to the of support hence to proponents, and conclusion of the trial (Estate Pellegrini, Cal.App.2d 138 143 court thereon. of 558].) P.2d [291 Appeal Gladys Wollenberg gave Item of will previously noted, the residue As Gladys Philpot, Jessie of the estate to R N. share alike. court found that Wollenberg, share and be this item could not of Philpot; undue influence that to elimi- affected
will make will for the therefrom would be nate express intent. The further did not court decedent which the time the execution will found disposed by the resi- would be property which owned portions of the will affected the undue duary if the clause probate. admitted were interpretation for discussing various rules in the Probate and court wills as found Code construction of Lefranc, in Estate Supreme Court has held opinions, our 617], that: 295-296 P.2d 289, 38 Cal.2d [239 according to the intention “A to be construed ‘will is effect his intention cannot have Where the testator. ’ (Prob. possible. have effect as far as full it must extent, its inter- are to receive an 101.) ‘The words a will Code, § effect, every expression give some pretation any expressions of will render one which rather than of two inoperative; interpreting will, modes that is to prevent preferred intestacy.’ (Prob. which will a total (See Code, Phelps also Estate § 102.) (1920), 182 Cal. ; McCurdy (1925), P. 197 Cal. 17] [190 parts 498].) P. All ‘the of will are be construed other, each if as, possible, relation to and so form one whole; parts absolutely where consistent but several are irre ’ *6 prevail. concilable, (Prob. Code, latter must 103.) the § or bequest by ‘A clear and distinct devise cannot be affected by any assigned therefor, any or reasons other words not equally distinct, by argument or clear inference or from parts will, byor an other inaccurate or recital of refer to part (Prob. ence its contents in another of the will.’ Code, 104.) ‘A of per devise the residue of the testator’s § property, passes personal sonal all the real property, or as be, may the case which he to bequeath was entitled devise or death, at the of his effectually time not otherwise devised or by bequeathed (Prob. Code, §126.) will.’ making ‘The presumption of will raises a that the testator intended to dispose property. Residuary of all his clauses generally are purpose making inserted for the of disposition that complete, always and these clauses are to receive a broad and liberal interpretation, preventing with a view of intestacy any as to portion general of of testator, the estate the and this rule is harmony with the declaration of provisions our code that the of possible, a will must be if construed, so as to effect that purpose.’ (O’Connor Murphy v. (1905), 148, 147 Cal. 153 ; P. see also Estate Beldon (1938), 11 108, [81 406] Cal.2d 1052].) prevailing principle P.2d The [77 is that the function the court is to will, construe a one; to make to the ascertain testator’s expressed intention as and, lawful, if give it (Emphasis added.) effect.”
While it is true if that the entire will is the result probate of undue influence, of the same must be refused, “ only f nevertheless, part by of it is affected undue influ [i] ence, part may rejected be void, the remainder, but is the outcome the free action of testator, ought the if be sustained it is not and can inconsistent be part invalid, the which is be and should admitted to probate.” (Estate Webster, Cal.App.2d 6, P.2d 355].) 111 P.2d
Applying the present rules in the noted cited cases to the one, only evidence participation as to related and Kirtlan. As remaining parties named in Item 7, absolutely there is
Snyder Wollenberg, evidence activity any by them in any procuring kind relative to specifically The court found the will. execution Snyder. No regards finding, however, was made be true as concerning in fact her name is not even men- Wollenberg; opinion memorandum filed in the exhaustive tioned exception feeling Furthermore, of his towards court. his will expressed in and toward former Snyder as Wollenberg, evidence, shown daughter-in-law any any evidence of love or is devoid affection record and his relatives. In fact testator all between contrary. facts and Under such circumstances cannot any of undue presumption influence or said that specific so affected the activities inter- Wollenberg Snyder impossible that it is ests of deter- legacies their were tainted extent with this mine what undue Wollenberg concerned, far as are influence. So leaving is their situation died “. . behind . [testator] duly expressing instrument executed testamen- [his] [him] influence, in their favor unaffected tary wishes vitiating nothing circumstance. This means or other fraud, perfectly the will is as to or less valid them. more than only portions of it is the will in result favor *7 revoked, remaining . . should be [Philpot of . the which] continuing expression as a valid portions [testator’s] (Estate testamentary Carson, intention.” Cal. of 239].) 5,P. 17 A.L.R. 441 [194 statutory rules of construction as noted in the Lefranc The are that function the the thereof the of summation case and one; a to make to construe will—not ascertain court give expressed, effect, which testator’s intention the the may mean as noted in Webster and Carson construction rejection of of the remainder. acceptance cases, the general thought contrary expressed to the and even thereto But opinion, the effect its memorandum of in the trial court’s any possibility carrying out, except was to defeat conclusion testator’s intention. This bequests, the is true as minor Snyder the court excluded both judgment since only two beneficiaries for whom he was Wollenberg, any affection, except Littlefield, expressed shown have very substantially persons all of estate thereby gave not emphatically he did want. We cannot participation whose result. agree such residuary that the clause must fail contention further possessed property because of no be was would disposed by will, should the affected probate, have is also been admitted without merit. By Code, the terms of section 126 of the Probate one who residuary disposition of per makes his estate either real or effectually sonal, passes property all such “not otherwise ” or bequeathed Necessarily, therefore, devised his will. effectually property devised, present not such as in case, residuary in pass would the beneficiaries named clause. contrary Thus it has been held in the absence a intent clearly expressed accepted will, the terms “the rule state general residuary where there valid is a [is] lapsed devise real mentioned or void devise goes (Estate residuary Russell, devisee ...” 604, 605 P. 345].) Cal. [89
Although we believe rules above enunciated to be con trolling questions in relation to concerning raised the resi duary dispute, clause of the will here we been have referred to no California case comparable wherein a factual situation presented specific point was or wherein this was at issue.
However,
Carter,
in Wellman v.
It should further be noted that the conclusion we concerning have reached residuary the construction of the clause redound to benefit of Jessie who did appeal Gladys Wollenberg as well as did, who under the rule enunciated in the Blache, case Blache v. 37 Cal.2d 547], P.2d wherein the expressly court held: is true
“It that there are eases which hold a judgment against final nonappealing becomes party though even judgment is reversed appeal parties. of other *8 [Citing applied But rule is not portions where cases.] judgment nonappealing a adverse to party are so inter- woven with appeal the whole from part affects the parts; other appellate such situation court can reverse judgment the entire if it is do necessary to justice.” (P. 538.) necessarily
The conclusion we have reached herein
gift
rule
is
certain named
invokes the further
that where
to
individuals,
they
is specifi
each are to receive
and
share
cally mentioned, they
individually as tenants
take
common.
designated
or,
persons
of such
as in
Thus when one
dies
taking
designated
present case,
precluded
share,
is
intestate,
as to that share the testator died
and such
then
(Estate
portion
Murphy,
is
in his
vested
heirs
law.
Kelleher,
Am.St.Pep. 110];
P.
Cal.
[106
1060].)
SCHOTTKY, Concurring I concurin majority opinion judgment affirms as am Kirtlan, but unable appellants it relates judgment opinion majority that the agree with the Wollenberg and appellant relates to should be reversed my as to Snyder. I set forth views devisee shall therefore Gladys Wollenberg. appeal of appellant Philpot, (7) gave'the residue Item of the will Wollenberg, court found appellant and the Jessie from the (7) not be that said Item could making a will undue influence without affected said intent. court express did not Stauffer’s will that Harry S. was executed found also at the time the will disposed of property which would be owned Stauffer affected residuary portions of said clause if the (the the 14th and I Street undue influence devise probate. admitted appellants Philpot Kirtlan) were Wollenberg Appellant contends the resi- does not invalidate appellants Philpot and Kirtlan beneficiaries, residuary gift duary innocent two argues that be- Snyder. she her herself Jessie brief portion Philpot’s appellant undue influence invalidated cause instead to one-half thereof residue, she is entitled conceded argument her counsel one-third, upon but the oral *Assigned by Judicial Council. Chairman of *9 only that she would be entitled to one-third of the residue. Wollenberg Appellant points out that there was no evidence finding any or any undue influence or wrong other was, any way, indulged Gladys either Jessie or Wollenberg. appellant The evidence establishes that Wollen- berg They married the son of decedent 1926. were di- years vorced during marriage some three later and she had occasion to visit with the family, Sacramento Stauffer includ- ing her father-in-law, decedent, weekly. two or three times There was evidence that reciprocal after the divorce these visits were continued. up After Ida’s death and to ‘‘around 1950” decedent Gladys continued to visit at her home. The decedent was fond of appellant her two points sons. Said out on the other feeling existing hand the between the family Stauffer Henry family and the very distant. The any last times Henry family any ever seen of the Stauffers were in 1935 and they 1937. Even then did see not decedent. general
The rule partial invalidity as to expressed is well in 57 American Jurisprudence, 366, page section 266, as follows: “ While there are authorities which hold that where the execution of a will is shown to be the result of undue influence, upon issue is validity of the will as a whole, testimony which defeats one legacy devise or one all, defeats general rule is parts may of a will be held valid notwithstanding parts other are invalid account undue upon influence exercised testator, provided parts so separable affected are so that the will intelligible remains itself if the parts invalid are upon probate. deleted In other words, the valid may of the will stand and be ad- mitted probate, although parts other probate, are denied or are aside, set through obtained undue influence, unless provisions are so interdependent the valid cannot be from the invalid defeating general without intent the testator. .. . general
“The rule as subject stated above is to the limita- tion that it is applicable when it will defeat the manifest intent of the testator, general interfere with scheme of distribution, or injustice work an to other heirs. doctrine applicable is not where impossible it is to determine to what specific extent legacies have been tainted the undue influ- ence ; in such a situation the whole will either must be refused probate or admitted thereto.” Wollenberg cites section 102 of the Probate
Appellant Code interpretation pre- of a will which will effect that an quotes from intestacy preferred, and also vent Cal.App.2d 6, page P.2d 111 P.2d Webster, follows: 355], as if the whole general rule is that will is the result
“The influence, probate undue of the presence of whole only part If of it is affected must be refused. may rejected void, remainder, but the influence, that testator, ought outcome of the free action is the *10 separated inconsistent and can if it is not to be sustained invalid, and should be from admitted the ” [Citing probate. cases.] Carson, also cites Cal. appellant Said 239], holding by that a will induced 5, A.L.R. false P. residuary legatee is valid as representations to the showing any in the absence of bequests to others such by representations. affected bequests were majority opinion, in the As set forth court found that voluntary Harry the free and act of C. the will not product the undue of appel- but was Stauffer except bequest $5,000 Kirtlan as to a Philpot lants and property Littlefield and devise certain real Michael David property Harry Snyder (which was sold before C. to Jessie causing lapse). Appellant devise to death, said Stauffer’s Wollenberg argues that “The result of the trial court’s deci- intestacy pass and thus the bulk of create an dece- sion is to very were, effect, heirs who disinherited dent’s estate regard.” But, had no or by him for whom he affection and by respondents, court, Harry found by out pointed property at the time the will was executed Stauffer owned residuary clause, disposed of and if which would be appellant permitted to stand as to Wollen- clause were said receiving part berg which was she would be Philpot appellants and Kirtlan. Fur- specifically devised determine to possible to what extent thermore, it is not Kirtlan caused appellants undue influence of Harry of all of the blood relatives of virtual disinheritance Henry. Myra Stauffer other than findings residuary that the I believe that the court’s the will not be clause could striking the name undue influence affected residuary permitting Philpot from said clause appellant be to make a will for stand would the remainder to support Stauffer find in the I record. believe that the instant case exception general comes within partial rule of invalidity, quoted, hereinbefore “the doctrine is applicable impossible where it is to determine what extent ’’ specific legacies have been undue influence. tainted
I judgment would affirm entirety. in its rehearing Petitions for a were denied June 22, 1956, and petitions appellants B. N. and Hilda Kirtlan respondents and of Myra Stauffer Henry, Edna Dyer, Alice Taylor Marjorie Stauffer Stauffer for a hearing by the Supreme July Court were denied 24, 1956. May No. 31, 1956.] 8875. Third Dist.
[Civ. ROBERT J. BAILEY al., et Petitioners, v. SUPERIOR
COURT OF SHASTA COUNTY, Respondent; JOSEPH al., BALL et Real S. Parties in Interest.