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


Civ. 13455.

Decided: October 09, 1947

Leander L. James, of San Francisco, for appellant. J. Elwood Andresen, of Oakland, for respondent.

The proponent of a purported will appeals from the order denying probate.

The decedent died in action in the Bay of Biscay August 1, 1943. He left a mother, the proponent, a wife, the contestant, and a minor daughter, who was eight years of age at the time of her father's death. In December, 1941, when decedent was contemplating being sent overseas, he wrote a letter to his mother to which was added a postscript reading:

‘P.S. I have a surprise coming for you and hope it works out. This is all I can tell you. My insurance is made out to Alyse so should I get in this war and not come back I want my savings & stocks to go to you. Keep in touch with Alyse.-1516 Lehigh Ave., Phila. Pa.’

The body of the letter was written, dated and signed in ink. The postscript was in lead pencil. It was not dated nor signed, and no proof was taken as to when it was written.

The appeal presents the single question whether the trial court erred in denying admission of the postscript as a last will and testament. This question depends wholly on the application of the inferences to be drawn from all the circumstances.

In finding that the paper was non-testamentary the trial court had these facts supporting that inference—the postscript states: ‘I have a surprise * * * hope it works out.’ ‘This is all I can tell you.’ What more was there to tell if this was a last will? And what was it that he hoped would work out, unless he intended to make a will before he got into the war? The letter was written while he was in training. He did not go overseas until nearly two years later. No further mention of the letter was made.

The decedent and respondent had been married about ten years before the letter was written. Whatever property decedent had acquired was presumably community. Half of that would go to the wife notwithstanding a will. The minor child was not mentioned in the paper. She would take one-half of his estate as a pretermitted heir under section 90 of the Probate Code. The deceased left other property, real and personal, not mentioned in the paper.

Under all these circumstances it was reasonable to infer that the postscript was not intended to be testamentary, but that the writer merely expressed the intention to make a will at some future time, in so far as he was legally entitled to do so, and that he did not intend by this postscript to deprive his wife or his daughter of their legal rights under the Probate Code.

Primarily, the interpretation of a written document is committed to the trial court, but the reviewing court is not bound by that interpretation unless it has been based upon extrinsic evidence in which there is some conflict. Estate of Wunderle, 30 Cal.2d 274, 181 P.2d 874, citing cases. But, where the question of testamentary intent arises from the document offered ‘it must satisfactorily appear’ that the decedent intended ‘by the very paper itslef, to make a disposition of his property.’ Idem., 30 Cal.2d at page ___, 181 P.2d at page 878, and cases there cited. Thus, if it ‘satisfactorily’ appears to the trial court on viewing the paper, the evidence, and the applicable inferences that the paper was not intended as a final disposition of the property, its finding that the paper is not testamentary cannot be attacked on appeal except by a showing of error, or that it is arbitrary or unreasonable.

Order affirmed. Respondent to have her costs.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.

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