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District Court of Appeal, Second District, Division 1, California.


Civ.S.C. 54.

Decided: June 04, 1937

Marshall & Farnham, of Long Beach, for appellant. Ben A. Hill, of San Pedro, for respondent.

The contestants herein are the daughter and son, respectively, and the only heirs at law of John D. Martens, who died on or about the 4th day of April, 1936, leaving a last will and testament dated October 17, 1929, by which he devised and bequeathed his entire estate to the said son and daughter in equal parts. The only portion of the will with which we are concerned upon this appeal is paragraph “Fifth,” which has reference to the appointment of an executor of the will. Originally, the paragraph read: “Fifth: I hereby appoint and nominate Sylvester Rocco of San Pedro, California, as Executor of this my Last Will and Testament, and in the event he cannot or does not act as such executor, then and in that event, I nominate Henry E. Sherer of San Pedro, California, as executor in his place and stead.”

It appears from the record that the will was placed in the custody of the Bank of San Pedro, with which institution Rocco & Sherer were associated, and there remained until some time in March, 1933, when the testator secured it and thereafter had it in his possession. The evidence shows that on May 10, 1933, the testator, in the presence of his daughter, Pearl E. Train, her husband, Lew B. Train, and their son, Frank Martens Train, requested Lew B. Train to draw a line, using a typewriter, through the words: “Sylvester Rocco of San Pedro” and “in the event he cannot or does not act as such executor, then and in that event, I nominate Henry E. Sherer of San Pedro, California, as executor in his place and stead.” After some general conversation as to whom should be named as executor, testator requested that the names “Pearl E. Train and Arthur R. Martens” be inserted in said paragraph “Fifth”; that testator then directed Lew B. Train to write at the bottom of the will the following: “Article No. 5 above was changed at my request and ordered changed by myself on this ten day of May, 1933.” Whereupon, testator signed his name to said memorandum, and Lew B. Train witnessed such signature.

On April 6, 1936, contestants filed their petition for probate of the will and for their appointment as executors thereof; a few days later, respondent, Sherer, filed a second petition for probate asking that letters testamentary be issued to him, setting forth in his petition that Sylvester Rocco had declined to act as executor and had filed his waiver to that effect. Contestants then filed their written opposition and contest to the second petition for probate, and by a separate petition sought appointment as administrators with the will annexed. The matter came on for hearing in due course, and after hearing the evidence, the court admitted the will to probate and granted letters testamentary to respondent, Sherer. This appeal is prosecuted from that order by one of the contestants, Pearl E. Train.

Appellant maintains that the alteration of paragraph fifth amounts to a revocation of that particular paragraph, which leaves the will without an executor, and thus entitles appellant to the granting of her petition for appointment as administratrix with the will annexed. Respondent, on the other hand, contends that the alteration constitutes an attempted codicil to the will, which fails because it was not executed with the due formality of a will.

This matter comes to us upon an engrossed bill of exceptions, which shows, in addition to the testimony of the witnesses Pearl E. Train, Lew B. Train, and Frank Martens Train, that one E. D. Whitney testified that during the summer of 1933 the testator told him he had lost all confidence in Henry E. Sherer and that he (the testator) would not permit Sherer to handle his business under any condition. One Gladys Garrison, when called as a witness, testified that the testator had referred to Mr. Sherer as a scoundrel.

Appellant, in support of her contention, cites In re Estate of Wikman, 148 Cal. 642, 84 P. 212, and section 74 of the Probate Code.

Said section provides as follows: “Except as hereinabove provided, no written will, nor any part thereof, can be revoked or altered otherwise than:

“(1) Instrument executed with same formalities. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities required for the execution of a will; or,

“(2) Destruction, proof of. By being burnt, torn, canceled, defaced, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction. If such act is done by any person other than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses.”

As will be noted, the statute above referred to provides for revocation of a will in whole or in part, and apparently acting upon that premise, the court in Re Wikman's Estate, supra, held that, where the evidence showed that the will was in the possession of the testator from the time of its execution until his death, and was found immediately thereafter among his effects in his trunk, and that the name of the person nominated by testator as executrix had been canceled by ink lines drawn through it, this was sufficient to warrant a finding that this portion of the will had been canceled with intent to revoke it, and the balance of the will was entitled to probate.

However, we are of the opinion that the cited case is not authority here, for the reason that the will in the cited case was an olographic will, and further that the testator there made no attempt to substitute the name of a new executrix in the place of the name which was canceled by drawing ink lines through it.

In his memorandum of opinion, the trial judge in this case stated: “Under the circumstances of the case it is apparent that the doctrine of relative revocation applies and that the modification was in effect an attempted codicil which failed for want of formal execution.”

Because the testator apparently did not abandon the idea of naming an executor of his will, we are not convinced that he intended the alteration of paragraph fifth as a revocation, but are rather inclined to believe that he intended it as a codicil, i. e., “* * * some addition to or qualification of a last will and testament.” In re Estate of Plumel, 151 Cal. 77, 80, 90 P. 192, 193, 121 Am.St.Rep. 100. As a codicil, the altered paragraph fails for want of due authentication, and we are of the opinion that the trial court was correct when he applied the doctrine of dependent relative revocation to the facts presented by the instant case.

In an annotation appearing on page 1401 of 62 A.L.R. is the following statement:

“When a will, or portions thereof, are canceled or mutilated in order to change the will in whole or in part, and the attempt fails for want of due authentication, or other cause, this effort to revoke in whole or in part will be treated as relative and dependent upon the efficacy of the new disposition intended to be substituted; and hence, if the attempted disposition is inoperative, the revocation fails also, and the original will remains in force. This rule is styled the doctrine of dependent relative revocation. It is based upon the presumption that the testator performed the act of revocation with a view and for the purpose of making some other disposition of his property in place of that which was canceled, and that there is, therefore, no reason to suppose that he would have made the change if he had been aware that it would have been wholly futile, but that his wishes with regard to his property, as expressed in his original will, would have remained unchanged in the absence of any known and sufficient reason for changing them.”

The order appealed from is affirmed.

I dissent.

In re Estate of Streeton, 183 Cal. 284, 191 P. 16; In re Estate of Wikman, 148 Cal. 642, 84 P. 212; In re Estate of Olmsted, 122 Cal. 224, 54 P. 745; King v. Ponton, 82 Cal. 420, 22 P. 1087.

YORK, Justice.

I concur: DORAN, J.

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