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IN RE: SMITH'S ESTATE.

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

IN RE: SMITH'S ESTATE. GROSS et al. v. JONES et al.

Civ. 15814.

Decided: July 28, 1947

Louis Thomsen, of Los Angeles, for appellants. Schweitzer & Schweitzer, of Los Angeles, for respondents Jones and Pomona College.

Katherine Allen Smith died on January 5, 1946. During her life, on July 22, 1942, she had executed a will by the terms of which she had given her entire estate to Pomona College, and on July 10, 1945, she had written across the first and second pages of an unexecuted carbon copy of said will of July 22, 1942, the following:

(1) ‘I Katherine Allen Smith do here by revoke this will

It is now nul and void

Katherine Allen Smith

(Nul & Void)

July 10th, 1945.'

(2) ‘I Katherine Allen Smith do hereby revoke this will it here by becomes nul and void Katherine Allen Smith July 10th, 1945.’

On January 31, 1946, Peter Gross filed his petition for letters of administration and on March 7, 1946, Albert E. Jones filed his petition for the probate of the will of July 22, 1942, and for the issuance of letters testamentary to him. Peter Gross and Mary Schmitt, uncle and aunt respectively of decedent, filed a contest to said purported will before probate, on the ground it was revoked by the holographic writings of decedent across the two pages of the carbon copy of the will of July 22, 1942.

The trial court found that testatrix ‘did not intend by writing said words of July 10, 1945, to revoke or alter said Will of July 22, 1942, in whole or in part. * * * That the Will of July 22, 1942, is the Last Will and Testament of Katherine Allen Smith, deceased, was considered as such by decedent at all times from the date of its execution until the date of her death, and at no time was revoked by decedent, in whole or in part.’

From the judgment admitting the will of July 22, 1942, to probate and appointing respondent Jones as executor thereof, denying probate to the testamentary writing of July 10, 1945, denying the petition of Peter Gross for letters of administration, and decreeing that contestants Gross and Schmitt take nothing by reason of their contest before probate, said contestants have perfected this appeal.

It is here contended that the court erred in admitting the will to probate because it had been revoked by decedent's holographic writing of July 10, 1945; and that the evidence is insufficient to support the court's finding that the revoking instrument was not executed animus revocandi.

‘When it is alleged that a will duly executed has been revoked, two questions are raised: (a) Did the testator intend to revoke it? (b) did he comply with the statutory requisites prescribed for the revocation of wills?’ 3 A.L.R. 833.

The revoking instrument here in question was ‘entirely written, dated and signed by the hand’ of the testatrix herself, therefore it constituted a valid holographic writing (Section 53, Probate Code), and complied with subdivision 1 of section 74, Probate Code, which provides for the revocation of a will by a written will or ‘other writing of the testator, declaring such revocation * * * and executed with the same formalities required for the execution of a will.’ (Emphasis added.) See, also, 1 Page on Wills, Lifetime Edition, p. 823, sec. 459, and authorities there cited.

In the instant case, it cannot be said that the revoking instrument was either ambiguous or uncertain. It was written across a carbon copy of the will of July 22, 1942, which was referred to in the writing as ‘this will.’ However, certain statements and declarations made by testatrix subsequent to the date of the so-called revocation, negative the fact that she intended thereby to revoke such will.

The weight of authority is that ‘declarations of a testatrix are admissible on the issue of revocation.’ Estate of Thompson, 44 Cal.App.2d 774, 776, 112 P.2d 937, 938, citing 79 A.L.R. 1498.

Mr. Virgil L. Catching, testatrix' nephew-in-law, testified that he had a conversation with testatrix at the hospital a few days before her death at which time she said ‘that in case anything should happen to her, for me to get in touch with Mr. Schweitzer, who had all the papers pertaining to her estate, and instructions as to what to do, that she wished to be buried in the same order or building as her mother and father, and that she was leaving her home to my mother and myself.’ This witness identified the revoking instrument which he found in testatrix' desk at her home in Los Angeles after her death.

Mr. Schweitzer testified that he had been decedent's attorney for ten or fifteen years and drew her will of July 22, 1942; that in August of 1945, he talked with decedent on the telephone at which time she told him she had been ill, and that he said to her ‘You know I have your will and papers here’; to which she replied, ‘Yes, I know that.’

The deposition of Mrs. Julia O. Spencer, the mother of Mr. Catching, avers as follows: ‘Shortly after I arrived at her (testatrix’) home, on or about the first part of December, 1945, Mrs. Smith told me that she had made a will and had given what property she had to the Pomona College; that she had left her property to the Pomona College with instructions for them to create a fund for educational purposes to be called the Katherine Allen Smith Fund; that she had in her attorney's office, the office of Mr. Dell Schweitzer, her papers and a letter with instructions as to what she wanted to have done after her death.'

Such testimony is sufficient basis for the court's finding that testatrix ‘did not intend by writing said words of July 10, 1945, to revoke or alter said will of July 22, 1942, in whole or in part.’

For the reasons stated, the judgment appealed from is affirmed.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.

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