104 Cal. 554 | Cal. | 1894
Anna L. Murphy, deceased, died at London, England, on March 30,1891. She was a widow at the time of her death; and her heirs at law were her three sons, Eugene K.'L. Murphy, Samuel J. Murphy, and Daniel T. Murphy, her married daughter, Anna L. Wolseley, and her three unmarried daughters, Mary Helen Murphy, Frances Josephine Murphy, and Mary Margaret Isabella Murphy, all of legal age. She left property in Alameda county, California. On June 20, 1891, Victor H. Metcalf filed a petition in the superior court of said county, in which he set, forth that said deceased left two certain written instruments, each dated May 13,1890, which he alleged to be her will, and prayed that they be admitted to probate as such will. He also averred that the heirs competent to administer had requested in writing that he be appointed administrator of the estate of the deceased, and prayed that he be so appointed. Such proceedings were thereafter had that on July 20, 1891, said two instruments were regularly admitted to probate by said court as constituting the last will of said deceased, and said Metcalf was appointed administrator with the will annexed, and duly qualified as such.
Afterwards, on July 19, 1892, within the year prescribed by the code, the said Anna T. Wolseley, Samuel J. Murphy, and Daniel T. Murphy filed in said court a petition to revoke the said probate of said will. The grounds on which the petition was based were that said
One of said instruments is as follows:
“ LONDON, England, May 13, 1890.
“Being in perfect health and in full possession of all my faculties, yet knowing the uncertainty of life, I write this letter to my children, that they may know what to make distribution of all my property when I die. Therefore, I wish it plainly understood that I desire all of which I am possessed at my death, whether real estate or personal property, of whatever description, to be equally divided between my three daughters, Mary Helen Murphy, Frances Josephine Murphy, Mary Margaret Isabella Murphy. Should either of these three daughters die, I wish her portion to be divided between the two surviving daughters. In case these daughters they all die without children, I wish the children of my eldest son, Eugene Kelly Murphy, the entire property they may leave to inherit share and share alike, Eugene Besson Murphy, Mabel Murphy, Charles Murphy. Anna L. Murphy,
“ 12 Charles street, Berkeley square.
“ May 13,1890, London, England.”
The following is the other instrument:
“ May 13, 1890, London, England.
“ Being in perfect health and in full possession of all my faculties, yet knowing the uncertainty of life, I write this letter to my children, that they may know what distribution I wish made of all the property of which I may be possessed when I die. Therefore, I wish it plainly understood that I desire all the property that I possess at my death, either real estate or personal property, jewels, pictures, plate, glass, furni*565 ture, carriages, my gas shares, all and whatever description, every thing that I possess, to be divided equally between my three daughters, Mary Helen Murphy, Frances Josephine Murphy, Mary Margaret Isabell Murphy. Should either of these three daughters die, I wish her portion to be divided between the two surviving daughters. In case either or all of these daughters die without children, I wish the children of my eldest son, Eugene Kelly Murphy, to inherit from my portion that I leave the three daughters whatever they may leave when they die. I wish these children of my eldest son, Eugene, to have share and share alike of whatever my three daughters may leave of what I have given them, both personal and real estate. AnNA L. Murphy,
“ 12 Charles street, Berkeley square.
“May 13, 1890, London.”
Upon first glance these two instruments seem to be substantially the same. Upon closer inspection, however, there is to be seen the shadow of a possibility that at some uncertain future period of time, if some events should happen, which may never happen at all, there might be some difficulty in determining where, under these instruments, certain contingent remainders would vest. It is contended that under one of the instruments, upon the death without issue of the daughters named in the instruments, what they “ may leave” of the property would go to the three named children of Eugene Kelly Murphy — Eugene Besson, Mabel, and Charles; while, under the other, it would go to all of the children of Eugene Kelly, including any others who might be thereafter born and living when the remainders should .take effect in possession. (Although the question is perhaps not affected by it, still it appears that Eugene Kelly Murphy has since died, and therefore can have no other children; so, as a matter of fact, the question can actually never arise.) The contention of respondents is that because, if the said daughters should die childless, and if there should be children of Eugene Kelly other than the three named, and if there should be a conten
We are satisfied that the contention of respondents as to the totál invalidity of the two instruments as a will cannot be successfully maintained; and that upon the findings the petition for the revocation of the probate should have been denied.
It is not necessary for us to determine here — what a court may never be called upon to determine — whether or not there are any such inconsistencies in the two instruments as those contended for by respondents. They refer only to future contingencies' which may never happen, and in no way affect the question whether or not the said two instruments constitute a will entitled as such to be probated; and the latter question is the only one here involved. When a proponent presents to a probate court one or more instruments claimed by him to constitute the will of a deceased person, and asks to have the same probated as such will, the only ques-. tion legitimately before the court is whether or not such instrument or instruments constitute the will of such deceased person. In determining that question the court has ordinarily nothing to do with the construction of the proposed will. This court, in Estate of Cobb, 49 Cal. 600, used this language: “The instrument offered being evidently of a testamentary character, upon ap
Thé following sections of the Civil Code are applicable to the case at bar; Sec. 1320; “ Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.” Sec. 1326: “ Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” Sec. 1296: “A prior will is not revoked by a subsequent will, unless the latter contain an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will.”
Respondents suggest that, as the record contains only the judgment-roll, certain findings must he taken as warranted by evidence not before us. But the findings show clearly the theory on which the decision was made, the facts upon which the theory rested, and that there was no evidence to explain those facts. These facts were that the two instruments were executed on the same day, and that there was nothing to show which of the two was executed last. Upon these facts the court held that the instruments were wholly inconsistent with each other; and that, as it cannot be determined which was executed last, therefore neither the two together, nor either one of them, was the will of the deceased. All the other findings upon the subject are mere inferences from the facts above stated. It was, therefore, wholly unnecessary for appellants to bring up any evidence; their appeal rests upon the facts found.
Respondents have a motion pending to dismiss the appeal upon the ground that the notice of appeal was not served upon the administrator of Eugene K. L. Murphy, deceased. The motion must be denied. It is doubtful if he was a person necessary to be served, as it appears that said Eugene was not hostile to appellants, but was in sympathy with them. If, however, it was necessary to serve his representative, we think that the evidence shows such service.
The motion to dismiss the appeal is denied, and the judgment is reversed, with directions to the superior court to enter judgment against the contestants, and denying the petition for the revocation of the probate of the will.
Hearing in Bank denied.