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District Court of Appeal, First District, Division 2, California.

SIMON et al. v. GRAYSON et al.

Civ. 11229

Decided: October 13, 1939

W.H. Spaulding, of San Francisco, for appellants. R.F. Mogan and Otto C. Stelling, both of San Francisco, for respondent.

Plaintiffs brought suit as the executors of the estate of S.M. Seeligsohn, deceased, against Blanche M. Grayson, as executrix of the estate of Esther Cohn, deceased, and against the remaining defendants who were residuary legatees of the estate of Seeligsohn. The suit was in interpleader, and the controversy became one between Grayson and these legatees. The cause was tried upon the cross-complaints and counter pleadings among the various parties, and was submitted upon an agreed statement of facts upon which the trial court drew conclusions of law and rendered judgment for Grayson from which the other defendants and the original plaintiffs in their capacity of residuary legatees have appealed on the judgment roll.

In paragraph four of his will Seeligsohn left $6,000 to his executors “to be paid by them in certain amounts to certain persons as shall be directed by me in a letter that will be found in my effects and which said letter will be addressed to Martin E. Simon and Arthur W. Green and will be dated March 25th, 1932”. This will was executed on March 25, 1932. The testator executed a codicil thereto on November 25, 1933. He deceased on January 27, 1935. In his effects were found the will, the codicil, and a letter addressed to his named executors dated July 3, 1933. No letter dated March 25, 1932, was found at any time. Since no evidence was offered, and since the stipulation of facts failed to cover the essential elements, the parties are compelled to rely upon the written documents and upon such presumptions and inferences as become applicable.

It will be conceded that the letter of July 3, 1933, expresses the intention of the testator as it directs his executors to distribute the sum of $6,000 among three women named therein who would not otherwise participate in his estate. The primary question is whether it is such a document as may be incorporated in the will by the reference therein in paragraph four.

Based on the holding in the early English case of Allen v. Maddox, 11 Moore P.C. 454, it is the accepted rule in this state that an existing document may be incorporated into and become a part of a will, by reference, provided the reference in the will itself is distinct and clearly identifies the document, or renders it capable of identification by extrinsic proof. Estate of Shillaber, 74 Cal. 144, 147, 15 P. 453, 5 Am.St.Rep. 433; Estate of Young, 123 Cal. 337, 342, 55 P. 1011; Estate of Willey, 128 Cal. 1, 8, 60 P. 471; Estate of Miller, 128 Cal.App. 176, 181, 17 P.2d 181; Estate of Martin, 31 Cal.App.2d 501, 505, 88 P.2d 234. But in all these cases it is recognized as an essential element that the document sought to be incorporated must have been in existence at the time of the execution of the will. Estate of Shillaber, supra; Garde v. Goldsmith, 204 Cal. 166, 168, 267 P. 104; 28 R.C.L., p. 112.

Respondent asserts that, notwithstanding this rule, the letter should be deemed incorporated in the will because of the codicil. We may concede the logic of this argument if the letter had been mentioned in the codicil in such a manner that its identification could be established under the foregoing rule. But respondent faces these insurmountable difficulties—the letter being dated July 3, 1933, must, in the absence of evidence to the contrary, be presumed to have been executed on that date. Section 1963, Code of Civil Procedure, subdivision 23. This date being more than a year after the date of the execution of the will, the letter may not be deemed incorporated in the will because of the rules above noted. The execution of the codicil some months after the date of the letter must be deemed a republication of the will as modified by the codicil. 26 Cal.Jur., p. 828; Probate Code, § 25. Thus, disregarding the changes made by the codicil, which are not pertinent to the inquiry, the will as it stood at the date of execution of the codicil, is deemed republished and re-executed as of that date. But such will carried no incorporation of the letter because of the rules above noted, and hence the republication must be deemed publication of the existing will only. This follows because of the express stipulation in the codicil that “Except as expressly modified by this Codicil, my Will of March 25th, 1932, shall remain in full force and effect”. Since there is not in the will nor in the codicil any reference to the letter of July 3, 1933, there is no principle of law under which this letter may be deemed to have been incorporated into the will by means of the codicil.

These principles are controlling: The will referred to a letter which “will be addressed” and which “will be dated March 25th, 1932”. There is no proof that any letter was in existence when the will was executed. The letter dated July 3, 1933, must be presumed to have been written as of its date. This letter could not be incorporated in the will executed prior to its date. The codicil does not mention the letter of July 3, 1933. If the republication of the will by means of the codicil may be deemed to have adopted and incorporated into the will the letter therein mentioned of March 25, 1932, this would not avail respondent because she is relying upon an entirely different letter—that of July 3, 1933.

Though the notice of appeal states that the appeal is from the whole judgment, all the parties are agreed that it should not affect that portion of the judgment which awards the plaintiffs attorney's fees and costs to be paid out of the fund in litigation.

As to all other portions of the judgment, it is reversed, and the costs of this appeal should likewise be paid out of such fund.

NOURSE, Presiding Justice.


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