14 Cal. 2d 261 | Cal. | 1939
This is an appeal from a judgment refusing to admit to probate two documents which were offered for probate as the holographic wills of Helen M. Towle, deceased, by the public administrator of the county of San Diego, of which county the decedent was a resident at the time of her death. No question is raised as to the correctness of the judgment in so far as it denied probate to the earlier will, dated May 21, 1932, which was denied probate upon the ground that it had been revoked by the express revocatory clause contained in the later instrument, dated September 19, 1933. But the correctness of the judgment in so far as it denied probate to the later document, dated September 19, 1933, has been challenged on appeal by Scripps Memorial Hospital and Fine Arts Society of San Diego, two of the charitable corporations named as residuary legatees in said purported holographic will. Respondents are cousins of the decedent who will be entitled to inherit property in California of the approximate value of $60,000 in the event the decedent died intestate.
The evidence with reference to these cancellations and interlineations is embodied in the deposition of Mr. Seftenberg, and is accepted by both sides as being a true and accurate account of the circumstances under which these cancellations and interlineations were made. According to the deposition of Mr. Seftenberg, Helen M. Towle came into his office at the bank in Oak Park, Illinois, on October 10, 1934, for the purpose of having him prepare a formal will for her. She had with her a document which was at that time entirely written, dated, and signed in her own handwriting, and which the probate court found was, on the date of its execution, a valid testamentary disposition of her property. She told Mr. Seftenberg that this was a temporary will and that the distribution of the property as set forth therein with a few modifications of detail was satisfactory to her. She also explained that her father had been an attorney and she was somewhat conversant with legal forms and phraseology, and that she understood a will entirely written, dated, and signed by a testator was valid as an holographic will. Mr. Seftenberg informed her that neither he nor the bank prepared wills, but offered to recommend an attorney to her who would handle the matter for her. He also offered to assist her in the preparation of her will by
It should be noted that the property conveyed by the decedent in the declaration of trust consisted of her Illinois property which was the bulk of her estate, but did not include the property owned by her in California. The declaration of trust contained identical provisions with reference to the bequests to friends and relatives as had been contained in her holographic will as modified by the interlineations, cancellations and additions, and the residue was likewise divided in the same proportions among the charitable corporations as it had been divided in her holographic will as modified. Due, however, to the fact that the holographic will made disposition of her entire estate, and the declaration of trust only provided for distribution of her Illinois property, it is apparent that the results of said identical scheme of distribution were not the same in so far as the residuary legatees were concerned. If the decedent had executed the formal will prepared for her by her attorney for the purpose of providing for the distribution of her California property prior to her death, the result would then have been the same.
The sole controversy involved in this appeal is the question of whether the probate court erred in refusing probate to the document, dated September 19, 1933, which when it was presented for probate was partially in the handwriting of
The probate court as the basis of its judgment expressly found that, “It is not true that said instrument . . . was at the time of the death of said Helen M. Towle as aforesaid her last will and testament; that it is not true that at said time the said instrument was entirely written, dated and signed by the hand of the said Helen M. Towle; that it is true that at said time there were upon said instrument interlineations, additions and changes, incorporated in the provisions thereof not written by the hand of the said Helen M. Towle, but theretofore placed thereon and incorporated therein by the hand of another in the presence of and with the acquiescence and consent and at the direction of the said Helen M. Towle.”
We do not think that this finding, which is supported by the undisputed evidence of Chester D. Seftenberg, embodied in his deposition, nor the judgment predicated thereon, can be successfully challenged.
It is elementary that a document, holographic in form, to be effective as a valid testamentary disposition of a testator’s property, must strictly fulfill the mandatory requirements of section 53 of the Probate Code. (Estate of Rand, 61 Cal. 468 [44 Am. Rep. 555] ; Estate of Billings, 64 Cal. 427 [1 Pac. 701]; Estate of Plumel, 151 Cal. 77 [90 Pac. 192, 121 Am. St. Rep. 100] ; Estate of Dreyfus, 175 Cal. 417 [165 Pac. 941, L. R. A. 1917F, 391]; Estate of Thorn, 183 Cal. 512 [192 Pac. 19] ; Estate of Bernard, 197 Cal. 36 [239 Pac. 404] ; Estate of Bower, 11 Cal. (2d) 180 [78 Pac. (2d) 1012].)
Section 53 of the Probate Code reads as follows:
“A holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It 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.”
Does the document offered for probate meet these statutory requirements? The answer must be, No. It is conceded by appellants, as indeed it must be, since it is self-apparent, that cancellations, interlineations and additions in the hand
Despite the admitted fact that the document presented for probate was not entirely written, dated and signed by the testatrix, it is argued that the concluding sentence of section 53 of the Probate Code saves it from being ineffective as a valid testamentary disposition of the property of the testatrix. Said sentence provides that, “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.” There can be no question that the interlineations and cancellations made by Mr. Seftenberg were made by him in order to express the plan and wishes of the testatrix, and were intended by her to be incorporated in the terms of her formal will when drawn. A mere cursory glance at the face of the instrument demonstrates the truth of this assertion. It is difficult to conceive of any document in which the intent to incorporate the additional words and figures therein written would be more patent. It is insisted by appellants, however, that no writing or printing can be “incorporated” by a stranger, but must be incorporated by
There can be no question that said sentence was added to said code section to codify the holding in Estate of De Caccia, supra. The note by the code commissioners to section 53 of the Probate Code said: “The last sentence is new: 205 Cal. 719,” which citation is the citation of the Estate of De Gaccia, supra. Estate of Bower, supra, expressly states that this sentence was added to the code section to codify the rule announced in the De Caccia case. Evidently, therefore, this provision was intended to apply to situations similar to that presented in Estate of De Caccia, supra. The holding in that case was to the effect that the mere presence of printed words upon the stationery used by a person for the purpose of writing his holographic will, but not intended by said person to form any part of his will, did not destroy the effect of the instrument as an holographic will, but was extraneous matter which could be considered nonexistent in so far as the holographic will was concerned. It follows, therefore, that this provision of section 53 of the Probate Code, which is intended to apply to certain instruments of the character of the one involved in the De Caccia case, was never intended to apply to a situation such as here involved, wherein the interlineations, changes and additions were made by a stranger subsequent to the original execution of the will, but with the consent and acquiescence of the testatrix, and to express her ideas and wishes.
It is true that the situation here presented is unique, and no case has been cited which involves a factual situation wherein the changes in an holographic will were made by a stranger thereto with the consent and acquiescence of the testator, subsequent to the original execution of said will. It is likewise true, that all the cases cited to the effect that an holographic will is invalid when not entirely written, dated and signed, by the hand of the testator, are without exception, cases where the foreign matter was included in the will at the time of its original execution, and not one of them involves a subsequent incorporation of foreign matter. But we think the obvious purpose and intent of the legislature of making an holographic will completely, entirely and wholly the exclusive act of the testator, leads necessarily to the conclusion that the slightest change by a stranger with the knowledge and consent of the testator, at any time during its existence, will completely vitiate any instrument as an holographic will.
The fact that the decedent on the day following the conference in which her holographic will was marked up by Mr. Seftenberg made a declaration of trust in which she disposed of all her Illinois property in the same manner as that in which she had disposed of her estate in her holographic will as modified, would indicate that she had intentionally abandoned and discarded her holographic will. This conclusion is further strengthened by the fact that she had prepared by an attorney a draft of a formal will embracing all the terms and conditions of the holographic will as modified by the interlineations, alterations, and changes made by herself and Mr. Seftenberg.
The refusal of the courts in the past to permit any deviation from the clear, plain requirements of the code section governing the due execution of holographic wills was based upon the theory that the rigid requirement that such wills be entirely in the handwriting of the testator was enacted by the legislature to afford protection from the danger of forgery of such a will, not protected, as is a formal will, by the safeguard of the requirement of due attestation by competent witnesses. (Estate of Dreyfus, supra.) In other words, the fact that a document is entirely in the handwriting of a testator, offers an adequate guaranty of its genuineness. This same reasoning applies, and the same danger of forgery exists, we think, with reference to cancellations, interlineations, and alterations made in an holographic will, and requires the changes, alterations, and interlineations to be made wholly in the handwriting of the testator. Such rigid
We are satisfied that the conclusion reached by the probate court is correct.
The judgment is affirmed.
Shenk, J., Edmonds, J., and Houser, J., concurred.
Rehearing denied.