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


Civ. 14401.

Decided: August 25, 1944

Lindstrom & Bartlett, of Los Angeles, for appellant. Gaines Hon, of Los Angeles, for respondents.

This is an appeal by proponent, hereinafter designated as appellant, from a judgment denying admission to probate of a document dated March 18, 1940, proporting to be the will of Samuel B. Kaufman.

These are the essential facts:

On March 18, 1940, Samuel B. Kaufman made and executed a will in New York, hereinafter called the “New York Will.” In this will appellant was named as residuary legatee. Subsequently Mr. Kaufman moved to California and on April 30, 1941, he executed a new will hereinafter called the “California Will.” On April 30, 1941, Mr. Kaufman executed a codicil to the California Will by which he named an additional executor of his estate. May 2, 1941, Mr. Kaufman died and subsequently upon the petition of one of the executors of his estate the California Will was admitted to probate. Thereafter appellant filed a petition seeking to have the New York Will admitted to probate. Respondent filed a contest to this petition and from the judgment denying the New York Will admission to probate the present appeal was taken.

There are two questions presented for our determination which will be stated and answered hereunder seriatim:

First: Was there substantial evidence to sustain the trial court's finding that decedent knew when he executed the California Will that he was revoking all previous wills including the New York Will?

This question must be answered in the affirmative. Mr. Moe M. Fogel, an attorney, who is a member of the State Bar of California, testified that Mr. Kaufman consulted him relative to the preparation of a will and that he asked Mr. Kaufman what his purpose was. Mr. Kaufman replied that he wanted a new will to be just like his old one except that he wanted a California executor.

Mr. Fogel further testified that:

“I examined this Will* and then asked him to wait a moment while I examined the Code. I examined the Code and found from the Code that if he executed this Will in exactly the same terms and revoked the other Will, then he would have to live a certain length of times, 30 days, in order to make it effective, and I said to him, ‘if I were you, I would draw a Codicil to this Will, because should you die within 30 days it would not be effective.’ He said, ‘No, I want a new Will. I don't want a Codicil’, and I drew the Will of 1941. There was one other thing which I inquired into in the meantime. I called Mr. Bruce Taft's office in his presence and asked him if the Church was properly designated in the old Will and found that it was, and I carried it into that Will. I then read the Will to him. I read from a copy and he had the original in front of him in the presence of Mrs. Nadine Simkins, my secretary. I asked him if this was his Last Will and Testament and he said yes, and I asked him, ‘Do you wish Mrs. Simkins and I to act as witnesses?’ and he said yes, and he executed this Will in our presence and we executed it in his presence.”

In addition to the foregoing testimony, the California Will contained this clause:

“I, Samuel B. Kaufman, do hereby make and declare this to be my Last Will and Testament, revoking all former wills.”

The foregoing evidence undoubtedly constitutes substantial evidence to support the trial court's finding that Mr. Kaufman intended to revoke the New York Will and knew that by executing the California Will he was revoking his previous will and that should he die within 30 days of the date of the execution of the California Will, the bequest in the California Will to appellant would be inoperative. Further discussion of the evidence would serve no useful purpose. (Eggert v. Pacific States S. & L. Co., 57 Cal.App.2d 239, 243, 136 P.2d 822; In re Estate of Winzeler, 42 Cal.App.2d 246, 248, 108 P.2d 720; In re Estate of Smith, 140 Cal.App. 508, 517, 35 P.2d 335.)

Second: Was the doctrine of dependent relative revocation applicable to the facts of the instant case?

This question must be answered in the negative. The doctrine of dependent relative revocation has no application where as in the instant case the testator executes a valid will meeting all legal requirements which revokes all previous wills. This rule applies even though the testator dies so shortly after the execution of his last will that attempted bequests to charity are void. (In re Estate of Smith, supra, 140 Cal.App. 517 et seq., 35 P.2d 335.)

Charleston Library Society v. Citizens, etc., Bank, 200 S.C. 96, 20 S.E.2d 623; Medical Society, etc., v. South Carolina, etc., Bank, 197 S.C. 96, 14 S.E.2d 577; Blackford v. Anderson, 226 Iowa 1138, 286 N.W. 735; In re Roeder's Estate, 44 N.M. 578, 106 P.2d 847; Stewart v. Johnson, 142 Fla. 425, 194 So. 869; In re Smalley's Estate, 131 N.J.Eq. 175, 24 A.2d 515; and Flanders v. White, 142 Or. 375, 18 P.2d 823, are not of value in view of the fact that our own courts have passed squarely upon the points under consideration contrary to the holdings in the cases cited from other jurisdictions. (See In re Estate of Smith, supra.)

In re Estate of Marx, 174 Cal. 762, 164 P. 640, L.R.A.1917F, 234, is inapplicable for the reason that it was held in such case that the latter will did not contain a revoking clause of a prior will.

In view of our conclusions it is unnecessary to discuss other issues argued by counsel.

For the foregoing reasons the judgment is affirmed.


FOOTNOTE.  The reference is to the New York Will.

McCOMB, Justice.

W. J. WOOD, J., concurs.

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