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District Court of Appeal, Fourth District, California.


Civ. 2305

Decided: November 22, 1938

Hillyer & Boldman and Bertrand L. Comparet, all of San Diego, for appellants. Gray, Cary, Ames & Driscoll, Burton D. Wood, A.H. DeRiemer, Charles A. Brinkley, James B. Abbey, Sloane & Steiner, and Glen Munkelt, all of San Diego, for respondents.

This is an appeal from a judgment refusing to admit to probate two purported holographic wills of Helen M. Towle, deceased. The earlier will was dated May 21, 1932, and the later September 19, 1933. No question is raised as to the correctness of the judgment in so far as it affects the earlier document. We will therefore give it no further attention.

Helen M. Towle, a resident of La Jolla in San Diego County, California, died in the province of Ontario, Canada, on December 26, 1934. She left with the Oak Park Trust & Savings Bank of Oak Park, Illinois (which we will refer to as the bank), the document in question here. When it was originally executed it was wholly written, dated and signed by the testatrix and was a valid holographic will as the trial court so found on ample evidence. When offered for probate it had on its face numerous erasures by means of lines drawn through the writing, and interlineations, partly in the handwriting of deceased and partly in the handwriting of Chester D. Seftenberg, vice-president and trust officer of the bank.

The document, as filed in the office of the county clerk, with the interlineations and erasures, is in words and figures as follows:

Oak Park, Illinois—Sep. 19—1933.

I, Helen M. Towle, of declare the following to be my last will and testament, revoking all former wills made by me.

1st: I direct that all my debts and funeral expenses be paid.

2nd: I give to Mary M. Towle my Cousin, for Carrie L. Towle, Mishawaka, Ind. the sum of five thousand dollars ($5000). In case she dies before I do, this sum shall be given to her sister, or in trust (2 & 3) Misha.

3rd: I give to my cousin Mary M. Towle, the sum of five thousand dollars ($5000).

4th: I give to my cousin Herbert C. Towle the sum of five thousand dollars ($5000). If he should die before I do and leave surviving him his son Herbert C. Towle, Jr., I give to Herbert C. Towle, Jr., said sum of $5000 and direct that it be held in trust for him by my executor and trustee until he reaches the age of twenty-five years, or else expended for his support and education.

If neither Herbert Sr. nor Herbert Jr. should survive me, said sum shall revert to my estate.

5th: I give to my cousin Margaret Towle Edris the sum of twenty-five hundred dollars ($2500=). In case she does not survive me this sum is to revert to my estate.

6th: I give to my friend Helen Barton Stillwell the sum of.

7th: I give to my friend Helen Kellogg, of La Jolla, Calif. the sum of one thousand dollars ($1000)

8th: I give to my friend Charlotte Earle the sum of one thousand dollars ($1000)

9th: I give to my friend Edith Ames English the sum of one thousand dollars ($1000)

10th: I give to my friend Laura C. Morey the sum of one thousand dollars ($1000)

11th: I give to my friend Frances P. Elliott the sum of one thousand dollars ($1000)

12th: I direct that my personal effects be distributed among my friends and relatives named in a letter enclosed

13th: All the rest of my estate I give to the following institutions, in the following proportions:

1/4th (one fourth) to Northwestern University to be used for the benefit of its Law School in memory of my father.

3/4 The rest to be divided evenly among Scripps Memorial Hospital located at La Jolla, Calif., for the benefit of its Free Bed Fund; Wesley Memorial Hospital located in Chicago, Ills., to be used for its Free Bed Fund, in memory of my Father; and the San Diego Art Museum located in Balboa Park for the purchase of works of art.

14th: I appoint the to take full charge of my estate and manage it according to their best judgment.

Realizing that it is difficult to sell securities and real estate because of the depression, I ask them to take sufficient time to avoid sacrificing what might become more valuable within a year or two.

However, I would like to have the bequests to my cousins paid as soon as possible.

Helen M. Towle.

It is admitted that the line through the words and figures “twenty-five hundred dollars ($2500)”, in paragraph “6th” of the will, was drawn by deceased and the figures, $1,000, appearing over them, were written by her. All the other lines drawn on the will, and the interlineations in the will, which are in script, were done by and in the handwriting of Seftenberg.

There is no finding that Miss Towle intended to revoke her will or that the writing on it was done with any such intent. Its probate was denied because the instrument was not “entirely written, dated and signed by the hand of the said Helen M. Towle” and because on October 11, 1934, Miss Towle executed a trust which the trial court found was inconsistent with the will.

Section 53 of the Probate Code provides as follows:

“A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and need not be witnessed. No address, date or other matter written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will.”

Section 74 of the Probate Code 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.”

In connection with the last quoted clause it should be observed that but one witness, Seftenberg, testified to the alterations which he made on the will.

The question of the effect of the alterations in the will, made in the handwriting of the testatrix, is settled in Re Estate of Finkler, 3 Cal.2d 584, 46 P.2d 149. Finkler prepared a holographic will. He subsequently made certain alterations in it in his own handwriting. In holding that these changes were a proper part of the holographic will, the Supreme Court said [page 156]:

“As the changes were made in the handwriting of the testator, and the document as changed remained in his possession until his death, this raised the clear presumption that the changes were made animo cancellandi. The rule in this respect has been stated by Mr. Page in his work on Wills, vol. 1, (2d Ed.) § 500, p. 822, as follows:

“ ‘If witnesses are not necessary to the validity of a will, as under the ecclesiastical law, interlineations made by a testator after he has executed his will, are a part thereof; since, by his act of making such interlineations, intending them to be a part of his testament, testator has re-executed his testament in such form as would have been sufficient for the original execution thereof.

“ ‘Interlineations in a holographic will after execution are a part thereof; and if they are not in testator's handwriting the will is rendered invalid thereby.

“ ‘Since holographic wills do not need witnesses, testator's act in erasing words and interlining others may amount to a revocation and re-execution, although such conduct would not have this effect if the will were an attested will.

“ ‘Here again, we have an apparent, but not a real exception to the general rule with reference to the effect of interlineations, since the holographic will needs no witnesses; and its execution in testator's handwriting, including the interlineations, is a sufficient compliance with the statute which regulates the original execution of the will; and hence it may be justified on the theory of a sufficient re-execution.’ ” See, also, In re Estate of Parsons, 196 Cal. 294, 237 P. 744; In re Estate of Chinmark, Myr.Prob., 128; In re Estate of Wikman, 148 Cal. 642, 84 P. 212; Succession of Guiraud, 164 La. 620, 114 So. 489; LaRue v. Lee, 63 W.Va. 388, 60 S.E. 388, 14 L.R.A.,N.S., 968, 129 Am.St.Rep. 978.

On the foregoing authorities we therefore conclude that the changes made in paragraph 6th of the will by the testatrix were a valid exercise of her testamentary powers and formed no sound reason for denying probate to the will as changed by her. See In re Estate of Glass, 164 Cal. 765, 130 P. 868.

The changes in the will which were made in the handwriting of Seftenberg present a much more troublesome question, and on the precise question presented here, there is a remarkable scarcity of authority.

In the case of Musgrove v. Holt, 153 Ark. 355, 240 S.W. 1068, Mrs. P.D. Porter left a last will which she had duly executed. After its execution, and without her knowledge or consent, a third party drew a pencil mark through the words and figures “Consideration $1,000 dollars”, appearing just above the signature of the testatrix, and wrote “They to receive $1000 in full for their services”, below the signature. The supreme court of Arkansas held that these unauthorized changes formed no sufficient ground for denying the probate of the will.

As we have already seen from the provisions of section 74 of the Probate Code, a will once executed cannot be revoked by being defaced unless such defacing be done “with the intent and for the purpose of revoking” it. The burden of proving such an intent rests upon the contestants. In re Estate of Streeton, 183 Cal. 284, 191 P. 16. We must, therefore, examine the evidence to discover the circumstances under which Seftenberg wrote and marked on the face of the will to determine the intent with which the writing was done and the markings made, for, a will once duly executed remains a will, entitled to probate until revoked in a manner provided by law.

The undisputed evidence shows that in October, 1934, Miss Towle and her companion were temporarily residing in Oak Park, Illinois; that about October 9 or 10, 1934, Miss Towle went to the bank and interviewed Seftenberg; that she had her will with her and gave it to him; that she told him it was a temporary will and that she wished a formal will prepared; that the distribution of her property as set forth in the will was satisfactory. Seftenberg told her that neither he nor the bank prepared wills but that he would assist her and would recommend an attorney who could draw the will.

The two sat down at a desk and proceeded to discuss the will. The markings and writings on it by Seftenberg were made in the immediate presence of Miss Towle who neither instructed him to place them there nor objected to his doing so. This was done merely for the purpose of clarifying the writing and to aid the attorney in drawing a more formal will. In other words, Seftenberg used the will as a scratch pad. His markings and writings did not materially change the beneficiaries named in the will nor the amounts they were to receive under it. The only material change made by him was in the paragraph naming the executor. Miss Towle consented to have the bank named as executor in the place of the Northern Trust Company of Chicago, nominated by her as executor. With that single exception, Seftenberg's markings and writings on the will, and the conversation of the parties, as related by Seftenberg, disclose no intention on the part of Miss Towle to revoke her holographic will but merely an intention to prepare a clear and slightly more detailed memoranda for the attorney to draw a more formal will.

Miss Towle told Seftenberg that she hoped to leave Oak Park in a few days. To save her delay and added conferences he offered to deliver the memoranda to an attorney who would prepare a formal will. She again expressed her satisfaction with the disposition made of her property and left the will with Seftenberg who gave it to an attorney who in turn prepared a formal will from the holographic will and the memoranda written on it and in accordance with it.

During the time taken in the preparation of this will, Seftenberg persuaded Miss Towle to place her Illinois property in a living trust. The formal will was submitted to Miss Towle on October 11, 1934. It was not executed by her. Instead she executed a declaration of trust with the bank as trustee and the ultimate beneficiaries and the shares to each in accordance with the dispositions of property in the will. Her Illinois property was transferred into this trust.

Miss Towle had property in California of a value, according to counsel, of about $60,000. This was not transferred to the trust. The disposition of this property was discussed and it was decided to have the attorney prepare a will disposing of all property not in the trust. The attorney prepared a will leaving all Miss Towle's estate to the bank as trustee to be administered under the trust. This will was not executed.

Miss Towle left Oak Park for a short visit to Canada, where she died on December 26, 1934. She had instructed her companion not to forward business letters to her. After her death, the last will prepared by the attorney was found in an unopened envelope at the Oak Park address. The holographic will was left in the possession of Seftenberg who forwarded it to San Diego, where it was offered for probate.

The foregoing facts negative any idea of an intent on the part of Miss Towle to revoke the holographic will. She repeatedly expressed satisfaction with its plan of disposition of her property. It is true that her last expressed desire was to have this plan executed through the trust. She died before that desire was consummated. That desire, and her repeatedly expressed satisfaction with the plan of disposition of her property in the holographic will, is a convincing argument that she did not intend to revoke that will until she had executed the second will prepared by the attorney. A revocation of the holographic will before the execution of the other will would have changed the entire plan of the disposition of her estate.

As far as we can determine from the record, her sole heirs at law are her six cousins, Margaret Towle Edris, Carrie L., Mary M. and Herbert C. Towle, and Ralph W. and Lucy B. Queal. It is clear that she desired Carrie L., Mary M. and Herbert C. Towle to each receive $5,000, Margaret Towle Edris $2,500, and her other cousins nothing. If the holographic will had been revoked each cousin would receive about $10,000 and the rest of the beneficiaries named in the will would receive nothing. Clearly, Miss Towle had no intention that such a result should follow.

Our attention is particularly directed to the quotation from Mr. Page, on Wills, in Re Estate of Finkler, supra, where it is stated that interlineations, not in the handwriting of the testator, made in a holographic will after its execution renders the will void. That question was not before the Supreme Court in that case because the alterations which Finkler made in his will were all in his own handwriting. However sound may be the statement of Mr. Page in some jurisdictions, it can hardly be the law in California where a holographic will once valid can only be revoked in the manner provided by law. The following cases, by analogy, support the conclusion that the rule announced by Mr. Page does not prevail here: In re Estate of Shillaber, 74 Cal. 144, 15 P. 453, 5 Am.St.Rep. 433; In re Estate of Doane, 190 Cal. 412, 213 P. 53; Garde v. Goldsmith, 204 Cal. 166, 267 P. 104; In re Estate of Miller, 128 Cal.App. 176, 17 P.2d 181. There is nothing to the contrary in Re Estate of Olmsted, 122 Cal. 224, 54 P. 745. A holographic will was not there involved. In that case the will, on its face, showed that the testator had defaced it with an intention to revoke it.

Counsel for respondents stress numerous well-considered cases which firmly establish the rule that a holographic will must be wholly written, dated and signed by the testatrix and that where it is partly written and partly printed, or has words stamped on it, the document is not a valid will. The soundness of this rule cannot be questioned. In each of these cases the printing was a part of the will when it was drawn and thus prevented the document from becoming a valid will. That fact distinguishes those cases from the instant case. Miss Towle's will was wholly written, dated and signed by her in her own handwriting. When thus completed it became a valid testamentary document. This is admitted by all parties and the trial court so found. It once having been duly executed, its effect as a valid will could only be destroyed in a manner provided by law. Where defacement is relied upon to establish revocation the intent and purpose to revoke must be established. Sec. 74, Probate Code; Estate of Streeton, supra. In the instant case there was no sufficient proof of such intent and purpose and there is no finding on that important question.

Respondents urge that by executing the trust agreement and placing a considerable portion of her estate in trust, Miss Towle revoked her will, the trust being inconsistent with the terms of the will. Sec. 73, Probate Code.

In 26 California Jurisprudence 1025, it is said: “The principle of ademption applies to specific devises and bequests, but not to demonstrative legacies,—gifts of the latter sort being payable out of the general assets, as hereinafter noted,—or to general pecuniary legacies.” In her will Miss Towle did not bequeath any specific and identified property. She made general bequests to be paid out of her general estate. The creation of the trust merely reduced the amount of her estate. The remaining estate was ample to pay these bequests. It follows that the creation of the trust did not revoke the will.

The judgment is reversed. Costs of appeal will be taxed against the respondents with the exception of the public administrator.

MARKS, Justice.

We concur: BARNARD, P.J.; GRIFFIN, J.

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