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


Civ. 16661.

Decided: March 22, 1949

Robert M. Dulin and Melvin E. Fink, both of Beverly Hills, and Schell & Delamer, of Los Angeles, for appellants. C.W. Byrer, of Los Angeles, for respondent J.G. Ohanneson.

This appeal is from a judgment admitting to probate a holographic instrument, executed by Ruby Sargavak, as a codicil to her will which had been previously admitted to probate. Appellants were devisees under the original will. They enumerate nine grounds of appeal, all of which may be resolved by a determination of the question: Was the instrument written with testamentary intent?

For more than forty years prior to the deaths of decedent and her predeceased husband they were on intimate, friendly relations with respondent Ohanneson, the proponent of the codicil, and with respondent Mahdesian, who is named as executor of decedent's will. The Sargavaks never had children and Mrs. Sargavak often referred to Samuel Mahdesian as “my son” and to Mr. Ohanneson as “my good friend and attorney.”

In 1943 and again in 1945 Mr. and Mrs. Sargavak executed mutual wills. He died in May, 1946, and the probate of his estate is now pending. Mrs. Sargavak died March 22, 1947.

Under the will executed by Ruby Sargavak on July 9, 1945, which was admitted to probate on June 16, 1947, one half of her estate was left to Sarah Avakian and Zaruhi Avakian, sisters of Samuel Mahdesian, and the remainder to Arkoohi Sargavakian, Adrine Lambrinidou and Meline Nakashian.

The instrument in question is dated September 29, 1946, and reads as follows:

“1566 W–29th St.

“Los Angeles 7, Cal.

“Sep. 29, 1946

“Sunday Evening

“To Whom It May Concern:

“I the writer—Mrs. Ruby Sargavak wants everyone to know that she is writing these lines of her own free will—no one is putting her or urging her to do it. She leaves everything she has to her Boy Sam Mahdesian & her layer, J.G. Ohanneson—she gives them power of Attorney to divide what is left of her Belongings to them. She specially advises to give nothing whatsoever to Mrs. Lillian Shooshan—she is no relation nor friend of hers—Mrs. Sargavak has been more than kind to her, just because she begged us to help her for a little time—Mrs. Sargavak would rather help her very own nieces & grand nieces & perfect strangers who are truly in need of help. God has been good to us, she did not appreciate the goodness of the Lord to her. All honor & glory unto his High and Holy Name!

Mrs. Ruby Sargavak.

“P.S. It is 8 o'clock, I am very tired—Ruby Sargavak.”

All parties concede that an instrument is not entitled to be probated as a codicil unless it was executed with testamentary intent.

Appellants, in an endeavor to show the document was not written with testamentary intent but was intended as a power of attorney and was to be used solely for the purpose of removing Mrs. Shooshan from the house, introduced without objection testimony to the effect that Mrs. Lillian Shooshan was a niece of Mr. Sargavak; she and her daughter came to live with the Sargavaks in 1945 and they continued living in the house after his death; Mrs. Shooshan constantly provoked quarrels with Mrs. Sargavak and there were frequent bickerings between Mrs. Shooshan and her daughter in Mrs. Sargavak's presence, which upset the latter; on the afternoon of September 29, 1946, Mrs. Sargavak telephoned Samuel Mahdesian and asked him to come to her home immediately and later she had her nurse call him with the same request; Mahdesian stated he would come if possible; when he had not arrived by evening, Mrs. Sargavak wrote the instrument in question; when Mahdesian came the next morning she told him she wanted him to get Mrs. Shooshan out of the house “right away,” that she could not stand her any more, that Mrs. Shooshan was always quarreling with her and nagging her because her uncle did not leave her anything in his will; Mrs. Sargavak gave Mahdesian the paper she had written and said, “As I told you, Mrs. Shooshan has been bothering me and demanding money from me, and I am writing this, and I want you to take it and any time you need it to use it * you are executor of Harry's estate and also you are executor in my will, and Mr. Ohanneson is our attorney. I want you folks to prepare and take care of my estate, my affairs, in the way that you know I want it. And whenever Lillian Shooshan ever gives any trouble, I want you to have this.”

The trial court found that the instrument purports to and does make testamentary disposition of the property of decedent and the intent to make such testamentary disposition existed at the time of the execution of the instrument.

Appellants contend that the court must consider the circumstances surrounding the writing of an instrument, the previous conduct, statements and explanations of the decedent and all other extrinsic circumstances in order to determine whether the document was written with testamentary intent.

A presumption arises that an instrument was executed cum animo testandi when a testamentary intent is clearly deducible from the writing which meets the other formalities required for a will. This presumption is rebuttable when an issue has been made that when executed it was not intended to operate as a will. 1 Page on Wills, 3d Ed., secs. 50–53, 59; In re Estate of Siemers, 202 Cal. 424, 435, 261 P. 298. Thus a will valid on its face written for the purpose of satisfying one who had persistently importuned the testator to make a will in her favor was held to be lacking in testamentary intent where the testator executed it simply for the purpose of bringing to an end such importuning. In re Estate of Siemers, supra. A similar situation would exist if a will were written in jest or as a model. 1 Page on Wills, 3d Ed., sec. 53.

If an instrument is free from ambiguity on its face, oral evidence is inadmissible to show that the maker thereof intended it to operate as an instrument of a type different from that which on its face it purports to be. 1 Page on Wills, 3d Ed., sec. 59; In re Estate of Pagel, 52 Cal.App.2d 38, 42, 125 P.2d 853; In re Estate of Kisling, 68 Cal.App.2d 163, 167, 156 P.2d 57.

The cases cited by appellants are not to the contrary. In Re Estate of Hughes, 140 Cal.App. 97, 35 P.2d 204, the court stated that taking the instrument in question in its entirety without the aid of any extraneous circumstances, it could not be said with any degree of certainty that it was intended by the writer as a testamentary disposition and therefore in its construction the court was forced to an examination of the conditions under which it was written and other extraneous circumstances which would have a bearing on the testamentary question. Similarly, in Re Estate of Dotta, 18 Cal.App.2d 763, 64 P.2d 741; In re Estate of Meade, 118 Cal. 428, 50 P. 541, 62 Am.St.Rep. 244; In re Estate of Kelleher, 202 Cal. 124, 259 P. 437, 54 A.L.R. 913, and In re Estate of Logan, 29 Cal.App.2d 60, 84 P.2d 245, the language in the instrument under consideration was uncertain and ambiguous.

There appears to be nothing ambiguous in the language of the instrument under consideration. It is addressed “To Whom it may Concern” and the writer begins by saying she “wants everyone to know that she is writing these lines of her own free will,” that no one is urging her to do it. This is clearly language which a lay person might use in stating that she was not acting under undue influence. Next she states she “leaves everything she has” to her boy Sam Mahdesian and her lawyer, J.G. Ohanneson. The testatrix could hardly have expressed a testamentary disposition in any plainer language. She gives them power of attorney to divide what is left of her belongings “to them.” The latter two words could refer only to Mahdesian and Ohanneson since they are the only persons who had been named. She then wants it understood that Mrs. Shooshan is to have nothing and adds that she would rather help her own nieces and nephews and perfect strangers who are in need of help. The fact that there are nontestamentary provisions along with the testamentary does not render the latter inoperative as a will. In re Estate of Button, 209 Cal. 325, 331, 287 P. 964. Mrs. Sargavak's attempt to give Mahdesian and Ohanneson power of attorney to divide what is left of her belongings does not change the character of the document. Appellants contend that by the word “them” decedent referred to the beneficiaries in her will. But nowhere has she referred to those beneficiaries or to her will, whereas to construe the word as referring to Mahdesian and Ohanneson is consistent with the preceding language by which she leaves everything she has to them.

The instrument being unambiguous and a testamentary intent plainly shown by the language used, extrinsic evidence may not be considered as proof that the decedent intended the document as a power of attorney rather than as a testamentary disposition.

Appellants further contend that the proponent of the codicil failed to meet the burden of proof in establishing that the instrument was written with testamentary intent. Since the language is neither uncertain nor ambiguous, and since a testamentary intent is clearly deducible therefrom, no further evidence is necessary to establish it and the proponent has sustained the burden of proof required of him.

Judgment affirmed.

WILSON, Justice.

MOORE, P.J., and McCOMB, J., concur.

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