Lead Opinion
Several appeals are presented together in this court and cause. Of primary importance is the one taken from an order refusing to admit to probate a holographic document made by decedent, Ethel May Kuttler, on February 16, 1956.
Decedent died a widow on February 28, 1956, leaving three grandchildren as her sole heirs; two brothers and a sister survived her, as did Earl Hayter to whom she was engaged to marry. Her estate consisted of cash, stocks, bonds, trust deed notes, furniture and household and personal effects; also certain real property appraised at $52,500; the entire estate was valued at $143,000.
Her sister, Bertha McQuarrie, and her fiancé, Earl Hayter, petitioned for probate of the holographic instrument; their application was opposed by Michael M. Kuttler as guardian for the three minor grandchildren. The objections were sustained and probate of the document was denied. It reads:
“Los Angeles 15, Calif. February 16th, — 56 To whom it may concern: If at any time I should pass on before I have a recorded Will: this is to certify that I do not want Mike Kuttler or Vera Kuttler, my deceased Sons' wives to have one thing or one cent of what I have: nor the children Joan, Bill or Nancy Ann as I never see them so I enjoy no pleasure from them.
“Notify Earl Hayter or my sister Bertha McQuarrie DO-7-7821—for them to dispose of my belongings as they see fit. Signed Mrs. Ethel May Kuttler 2/16/56.”
The effect of the instant ruling is to vest decedent’s “belongings” in the three grandchildren whom she expressly disinherited.
There is no escape from the conclusion that Mrs. Kuttler did intend this document to operate as her will. Testamentary intention is thus defined in Estate of Sargavak,
It is also well to bear in mind the fact that the search for a testatrix’ intention does not involve a determination that she understood the legal effect of the directions found to have been expressed by her in the will. The effect of what she has provided is governed by substantive law. If she makes a bequest which violates the rule against perpetuities (Estate of Fair,
Volume 57, American Jurisprudence, section 1134, page 729: “ Contravention of Rule of Law or Policy.—Although all the arbitrary rules and canons of testamentary construction are subordinate to the intention of the testator, it is universally recognized that the testatorial intention, even where clearly ascertainable, must yield to an established rule of law or public policy if it is in conflict therewith. Common examples of situations in which the testator’s intention is overcome upon this theory are afforded by wills whose terms disregard the rule in Shelley’s Case or the rule against perpetuities. In such cases the will must fail of effect, not because the intent
Not only does the document at bar disclose unmistakable testamentary intent but extrinsic evidence, which was clearly admissible (Estate of Sargavak, supra,
In our opinion there was no substantial basis for rejection of this testimony by the trial judge. “While no universal and immutable formula can be prescribed for determining the weight to be accorded testimonial evidence, it has frequently been said that testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact.” (Gomez v. Cecena,
Be that as it may, the writing in question affords irrefutable internal evidence of the requisite testamentary intent. First it disinherits in explicit language decedent’s only heirs (she left no children and no other grandchildren) ; then it confers a power of appointment upon Hayter and Mc-Quarrie with respect to her entire “belongings.”
“ A power of appointment, which may be created by deed or by will, is defined, generally, as a power or authority given to a person to dispose of property, or an interest therein, which is vested in a person other than the donee of the power.” (In re Lidston’s Estate,
Powers of appointment have been recognized as valid in this state ever since the decision of Estate of Sloan,
Though urged upon him, the trial judge ignored the proposition that the writing created a valid power of appointment. The question considered below was whether there was an outright gift to Hayter and McQuarrie followed by precatory words. But solution of the question of existence of a power of appointment is the proper approach to this case. The language of Estate of Sloan, supra,
The donee of a general power of appointment may exercise it in his own favor. In legal effect such a power gives him an absolute ownership. (Estate of Carter, supra, 47
Respondents argue that a power such as the one at bar is invalid because it delegates to another the authority to make a will for the testatrix, thus evading the statutes relating to the making of wills. The California cases above cited involve the distribution of a part of the property or less than the entire estate in decedent’s property, and hold such a power to be valid. The underlying theory is that the subject matter passes from the donor’s estate directly to the appointee and not from the donee or his estate. (Estate of Baird,
Respondent cites and quotes a discussion of “Delegation of Will-making Power” by D. M. Gordon, 69 Law Quarterly Review (1953), page 334. The author definitely concludes that the English cases have not held invalid a power such as the one now under consideration, although the language of certain decisions is critical of same. At page 335 he says: “But let us consider this situation: A makes a will that simply says: I appoint B my executor and give all my property to such persons as he shall appoint. It seems hard to claim that this would be in compliance with the Wills Act. A does not express his own will at all; he leaves that to B. What A signs is a mere shell; the real will is made for him by B after A’s death. So such a will seems unsustainable; but actually no such will has ever been invalidated by the courts; and unless delegation per se is a fatal objection, which has never been expressly decided, there is no principle that can be laid hold of as showing the will could be successfully attacked.
“True, there are cases in which wills not differing greatly from A’s have been held bad; but in each of these the court laid hold of some factor not to be found in A’s will, as a pretext for so holding. These factors were held to make the wills uncertain; but there would be no real uncertainty in A’s will; and nothing but a rule against delegation per se would make it bad.”
At 345: “We have already seen that if the courts should break with the past and recognize a general rule that testators cannot delegate will-making, then logically they cannot compromise between (a) holding against all powers of appointment in wills, and (b) allowing the most unrestricted use by testators of both special and general powers, provided only that these are not uncertain. There can be no middle course if neither general nor special powers can be exceptions to a general rule against the use of powers.”
Most courts in this country which have been confronted with our present inquiry have held the general power to be valid though covering all or substantially all of decedent’s estate. In In re Tinsley’s Will,
Baldwin v. Davidson,
Appeal of Richburg,
In re Lidston’s Estate, supra,
Respondents cannot prevail upon the argument that the use of the word “notify” or the giving of Mrs. MeQuarrie’s telephone number in the second paragraph of the writing indicates a sense of urgency, or that deceased used the words “dispose of my belongings” in the sense of authorizing Hayter and McQuarrie to transfer her personal effects, jewelry and removable objects to a place of safekeeping in order to protect them from falling into the hands of the daughters-in-law. Nothing but speculation underlies that argument. It is true that the word “dispose” is: “A broad and comprehensive term, with many shades of meaning, described as “nomen generalissimum, ’ and standing by itself, without qualification, . . . has been said to have no technical signification.” (27 C.J.S. p. 345.) But it has a familiar meaning when used in wills, as is evident from the quotations of the Richburg, Tinsley and Lidston eases, supra.
What Mrs. Kuttler obviously desired was that her donees have the power to distribute her “belongings” if she should die before executing a new and formal will. To say that she wanted something less is to deny the obvious. Of course, the fact that she expected to make a later and more formal will would not detract from the testamentary character of the one in question. (Richberg v. Robbins,
Upon the issue of whether the writing should be probated, it is unnecessary to consider whether the term “belongings”
However, this question must be determined in connection with the appeals involving the right to letters. (All matters on appeal are included in a written order signed by the judge and filed on October 23,1956.) Appellant Hayter applied for letters testamentary; that petition was denied and he appeals from the ruling. Appellant Bertha McQuarrie applied for letters of administration with the will annexed and appeals from the portion of the said order which denies her application. Michael M. Kuttler, as general guardian for minor grandchildren Joan Perry Kuttler and William Brent Kuttler, and as guardian ad litem for the other grandchild, Nancy Ann Kuttler, petitioned for letters of administration; this petition was granted and Hayter and McQuarrie appeal from that ruling.
The will names no executor, nor does it appoint one according to the tenor. (See 20 Cal.Jur.2d, § 115, p. 166.) Moreover, a holding that the second paragraph of the document confers a power of appointment upon Hayter and McQuarrie precludes a further ruling that they were thereby appointed executors; the two interpretations are mutually exclusive. The denial of Hayter’s petition for letters testamentary must be affirmed.
The conflicting petitions of McQuarrie and of Michael M. Kuttler, as guardian, for letters of administration require solution of the question whether the phrase “my belongings” embraces decedent’s entire estate, including her real property. This follows from the fact that Probate Code, sections 409 and 422, give the grandchildren priority of right over a sister and over Hayter (“Any person legally competent”), provided that the grandchildren “are entitled to succeed to the estate or some portion thereof” (20 Cal.Jur.2d, § 122, p. 175.) If the will does not dispose of the realty the grandchildren do succeed as heirs to that portion of the estate, and their guardian is entitled to letters c.t.a. in preference to Mrs. McQuarrie (20 Cal.Jur.2d, § 122, p. 176), for he stands in the same position with respect to letters as do his wards. (20 Cal.Jur.2d § 102, p. 150, § 140, p. 204.) But if the phrase “my belongings” includes realty, the grandchildren take nothing and appellant McQuarrie has the better right to letters of admin
The phrase “my belongings” may take on varied hues of meaning according to its matrix. Here there is nothing to indicate an intention to limit it to a portion of decedent’s assets. She doubtless recognized, after the explanation made by her lawyer that she could not disinherit her grandchildren without giving the property to someone else, that they would take any part of her property that the will did not dispose of. Her obvious intent in making this stop-gap will was to prevent inheritance by the grandchildren or their mothers. The document must be so read as to effectuate that intent, if possible.
In Estate of Schuster,
In Estate of Olson,
“In examining the will by its four corners and in the light of these rules, it does appear that the words ‘all My Personal belongings,’ as used in it, were susceptible of meaning ‘all of my own property.’
“In Estate of Kruger,
“ ‘The word “belongings” used by the testator with reference to the bequest to his wife, is generally understood as including the property that one owns, and it is not infrequently used in that broad sense; and in the instant case we feel that the word may reasonably be used to include all of the testator’s remaining property when we consider how the word “belongings” is ordinarily understood by the lay mind.’ ” At page 697: “Battantine’s Law Dictionary [Supp. 1954] in discussing the word ‘belongings’ says: ‘Although the word (belongings) as used in a will, has, on occasion, been restricted to such chattels as are peculiarly attached to the person, it has more frequently been construed broadly, under the language of the particular wills involved, to include personal property of every nature and even real estate.’ ”
In re Churchfield’s Will,
If the phrase “my belongings” were construed as excluding realty, Mrs. Kuttler would have died intestate as to more than one-third of her holdings, according to probate valuation.
The order of October 23, 1956, is affirmed with respect to the denial of appellant Hayter’s petition for letters testamentary ; in all other respects it is reversed with instructions to admit to probate the holographic document of February 16, 1956, to vacate the order appointing Kuttler as administrator, and to make an order granting to appellant McQuarrie letters of administration with the will annexed.
Herndon, J., concurred.
Notes
The question of whether the phrase “my belongings’’ included decedent’s real property as well as personalty does not arise on petition for probate (Estate of Parsons,
What its effect will be upon later proceedings, such as petition for distribution, is not before us. (See Estate of Nicoll, 79 Cal.App.2d 48, 53 [
Dissenting Opinion
I cannot agree that we are compelled to conclude that Mrs. Kuttler intended the document in question to operate as her will over the contrary finding of the trial court.
Appellants assume and the majority opinion seems to hold
Where such testimony was susceptible of different inferences, the trial court was entitled to draw the inference it thought applicable and, unless clearly arbitrary, such inference so drawn by the trier of fact is binding on the appellate court. (Juchert v. California Water Service Co. (1940),
While no particular words are necessary to show testamentary intent it is well established that before an instrument is entitled to be admitted to probate, excepting as hereinafter noted, it must satisfactorily appear from the instrument offered as the last will and testament that the decedent intended, by the very paper itself, to make a disposition of his property after his death in favor of the party claiming thereunder. (Estate of Wunderle,
It is also well settled that in order for an heir to be disinherited, the testator must leave a will which not only evidences an intent to disinherit but which also makes a valid disposition of his property. (Campbell-Kawannanakoa v. Campbell,
An analysis of the document in question discloses that it is entirely written, dated and signed by the decedent and is addressed: “To whom it may concern:” This heading is not necessarily inconsistent with a proper form of will if testamentary provisions follow. The document then reads: “If at any time I should pass on before I have a recorded will this is to certify that I do not want Mike Kuttler or Vera Kuttler, my deceased sons’ wives to have one thing or one cent of what I have: nor the children Joan, Bill or Nancy Ann as I never see them so I enjoy no pleasure from them.” This paragraph is clearly intended to disinherit the persons named and might be effective for this purpose if the decedent later in the document makes a valid disposition of her property.
Then follows: “Notify Earl Hayter or my sister Bertha McQuarrie Do. 7-7821—for them to dispose of my belongings as they see fit. Signed Mrs. Ethel May Kuttler 2/16/56.”
The first paragraph wherein the decedent indicates her desire to disinherit certain of her heirs is specific, positive and inclusive. She recognized the meaning of the words “to have” to indicate the taking of possession by way of ownership when she declared she did not want these persons “to have one thing or one cent of what I have.” In contrast the last paragraph is unclear as to meaning and is not inclusive. There is no word or indication of gift, bequest, devise or valid disposition to Hayter, McQuarrie or anyone. Instead of the inclusive words “one thing or one cent of what I have” the decedent uses the term “belongings.” The nebulous “To whom it may concern . . . Notify Earl Hayter or my sister Bertha McQuarrie . . . —for them to dispose of my belongings as they see fit,” is lacking in dispositive verbiage.
The paragraph requesting notification to Hayter or MeQuarrie to dispose of her belongings as they see fit may have been an afterthought prompted by a desire to have someone transfer her personal effects, jewelry and removable objects about the house to a safe place immediately upon her death to keep them from falling into the hands of the daughters-in-law until an administrator had been appointed to take them over. Such an inference gives a logical explanation for the presence of MeQuarrie’s telephone number in the request to notify. Hayter lived next door to decedent. The presence of the telephone number indicates urgency. It is inseparably tied in with notification to dispose of belongings. There could be no urgency if decedent meant by that paragraph to give the “belongings” to Hayter or MeQuarrie, or for them to give them to anyone else. But urgency could be called for if she used the word “dispose” in the sense of “transfer” or “remove” until an administrator had been appointed. That urgency might relate only to personal effects because real estate would already be safe, thus explaining the use of the word ‘ ‘ belongings. ’ ’
When the language used is coupled with the testimony that just eight days before she wrote the instrument she had not yet decided how she wanted her property to go, the most logical explanation for the instrument seems to be that it was intended only to exclude the daughters-in-law and the children from a share in her estate if decedent died before she made a will; that otherwise she was content to have her property go by intestacy. In furtherance of that interpretation the evidence showed that decedent had two brothers besides her sister, Bertha MeQuarrie. There is nothing in the record to indicate that decedent had any preference for her sister Bertha over those two brothers; to suggest any reason why MeQuarrie should'have been favored over those equally natural objects of decedent’s bounty, or to suggest that decedent was contemplating excluding those brothers from a share in her estate.
As far as respondent grandchildren are concerned, that purpose was, of course, frustrated by the rule of law heretofore stated that, in order for an heir to be disinherited a will must be left which additionally makes a valid disposition of the property of the testator.
The words in the document before us and which appellants contend are dispositive in meaning and effect may be compared to some extent with those in a holographic will in Estate of Maloney,
The rule of law that favors testacy as against intestacy only operates when the existence of testamentary intent has already been ascertained and the subject matter of the doubt is one of construction. “Where there is a doubt as to the existence of the animus testandi the rule in favor of testacy is not applicable.” (Estate of Anthony,
Nor do I agree that by the use of the words contained in the last paragraph of the document a power of appointment was conferred upon McQuarrie and Hayter with respect to her “belongings” or at all. There are no words of conferral of a power of appointment. Nor are there any words of gift or similar import to any possible appointee under any power. The language does not transfer title to anything to appellants. It does not say they may keep or dispose. It does not even say they “may” dispose. Appellants apparently imply such words from the direction to “dispose.”
The instrument is not even addressed to appellants, but is addressed to “whom it may concern” as a direction to “notify” Earl Hayter or Bertha McQuarrie for them to dispose of decedent’s “belongings” as they see fit.
The object to be searched for in interpreting an instrument is the intention of the writer of the instrument. Appellants assert that the intention was to give them the property absolutely. But if that be so, why didn’t the decedent say that? In the ordinary and normal course of events, a testator, if he wants to leave property to A and B, does not leave a writing addressed to “whom it may concern” directing that A or B be notified for them to “dispose” of the property as they see fit. The language of the instrument shows that the decedent had no difficulty in expressing herself in writing. And, as here
“Feb. 10,1934.
“My last Will and Testament:
“To my beloved Nephew Joseph Parrish, I give full authority to divide my small estate, as requested in a separate paper, not to be probated. He will give no bond, and be guided only by his unfailing good judgment, and unquestioned integrity.
‘ ‘ Grace B. Evans
“Dollie T willy ‘1 Carrie Sanders”
Since the instrument was headed as it was, unlike the one before us, there was no question as to the testamentary intent. The contention was made that the will clothed Joseph Parrish with an absolute power of disposition. In rejecting that contention the court said (pp. 306-307 [174 So.]): “We concur in the view of the trial court that this will, on its face, or with the aid of the documents mentioned, cannot be construed to vest an absolute power of disposition in Joseph Parrish, either to be performed as executor, or under a power apart from the office of executor; nor a power of appointment, carrying authority to name the beneficiaries among the heirs as a class, or to prescribe what share each shall take.
“Such powers, virtually substituting the donee of the power for the testator, in naming the objects of his bounty, or the shares each shall take, is not to be inferred except from clear and unequivocal language, or evidence admissible to make such intent clear. Pearce v. Pearce,
The Restatement of the Law of Property under the subject of “Powers of Appointment,” section 323, comment e, says:
“Occasionally a testator provides that certain property shall pass to his executors and adds ‘to be distributed by them as they deem advisable’ or ‘to be disposed of as they think will be in accordance with my wishes, ’ or some similar clause. Such a clause may have one of several legal effects. (1) If, as a
It is highly doubtful that the instrument in question was intended to be testamentary in character. How much more uncertain as to intent then is this instrument as compared with the one in the Parrish ease where there was expressed testamentary intent, or the clauses mentioned in the Restatement of Property quotation where such clauses are assumed to be part of an admitted will.
Hayter contends that the document under consideration appoints appellants as executors. He argues that the last paragraph serves to name appellants as both beneficiaries and as executors by the exact same language.
The word “executor” does not appear in the instrument offered. Since no person is expressly named as executor, the question must be decided upon the evidence as a whole and on principles of law relating to the appointment of an executor according to the tenor of the instrument. As was said in Estate of Clary,
“The appointment of an executor ‘according to tenor’ is not regarded with favor. While the decision of any case must be based upon its own facts, unless the court can conclude from the words of the testator that the latter intended for his devisee to take charge of the estate, collect its assets, pay its debts and perform the usual functions of an executor, it is error to appoint such devisee. . . . The foregoing rule is firmly established by the decisions of California and other jurisdictions.” (See also Estate of Dern,
Appellants are not directed by the instrument in question to “take charge of the estate,” to “collect the assets of the estate,” or “liquidate indebtedness of the estate” or to “do what is necessary to distribute the estate.”
Indeed, the instrument is not even addressed to appellants but “To whom it may concern.” The word “notify” may properly be construed to infer that the decedent intended the instrument to be only instructions to her friends and not a testamentary appointment of them as her executors.
In a contested proceeding in probate the limitations imposed upon an appellate court’s review of the facts are the same as in any other civil case. In reviewing the evidence all conflicts must be resolved in favor of respondents, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. (Estate of Blain, supra,
A petition for a rehearing was denied June 6, 1958. Kincaid, J. pro tern.,
Assigned by Chairman of Judicial Council.
Assigned by Chairman of Judicial Council.