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District Court of Appeal, Third District, California.


Civ. 7810.

Decided: March 16, 1951

Thomas W. Loris, Sacramento, for appellants. Busick & Busick, Sacrammento, Charles M. Frey, San Francisco, for respondents.

This is a proceeding brought under Section 1080 of the Probate Code by persons claiming to be entitled to distribution of the Estate of Wladyslaw Salmonski, Deceased. On June 12, 1946, said decedent executed a will. Therein he declared that he gave to his sister, Jozefa Salmonski, and to his brother, Waclaw Salmonski, appellants here, each forty-five per cent of his estate. He attached a condition to each of these bequests which was that unless the beneficiaries proved survivorship within one year from decedent's death the bequest to the one so failing in such proof should lapse. He stated the condition was imposed because he had not heard from either ‘since World War II ended’, although he had written to his sister's last known address in that part of Poland overrun by invading armies. He expressed doubt that either was alive. He then gave to Theresa Bardzinski, one of respondents herein, ten per cent of his estate. He provided that if either or both legacies to the brother and sister should lapse then respondent Leocadia Butkin should receive $1,000 and Theresa Bardzinski all of the residue of his estate. He named Theresa Bardzinski as his executrix and gave her power of sale as such without necessity of notice or order, but subject to confirmation of court. Five days later decedent wrote a letter reading at follows:

‘Sacramento, Calif.

June 17, 1946.

‘Dear Mrs. Bardzinski.

‘In case of my death kindly sell the stocks and devide everything that belongs to me between yourself and Mrs. Leocadia Butkin.

‘This is my last wish

‘Your friend

Walter Wladyslaw Salmonski'

Salmonski died on July 6th following and on July 11th Mrs. Bardzinski petitioned the Sacramento County Superior Court that both documents be admitted to probate together as the last will and testament of decedent and for her appointment as executrix thereof. She alleged the letter was a codicil to the formal will. On July 26th Mrs. Butkin filed a contest in which she asked that the first instrument in point of time, the formal will, be denied probate and that the letter be admitted as the olographic will of decedent. At the same time she filed petition to have herself appointed as administratrix with the will annexed of the alleged olographic will. By her pleadings she contended that the letter was a later will which revoked the prior will. All three matters were heard together and the court made the following dispositions thereof: It dismissed the contest, it denied the petition of Mrs. Butkin for letters of administration with the will annexed upon the alleged olographic will alone, and it admitted both documents to probate together as the last will and testament of decedent, appointing Mrs. Bardzinski executrix thereof. The letter was admitted to probate as a codicil of the prior will. No appeal was taken from any of these orders, and all in course of time have become final.

Thereafter the brother and sister of decedent, appellants here, appeared in the proceeding and made the necessary proof of survivorship. On April 12, 1949, they began this proceeding, asking that it be adjudged each was entitled to forty-five percent of the distributable estate of deceased. Mrs. Bardzinski and Mrs. Butkin, respondents to the petition to determine interests in the estate, answered the same, alleging that the whole of the estate should be distributed one-half to each. At the time set for hearing appellants' petition to determine interest, the respondents moved the court for an order submitting the matter on the pleadings and all other papers on file in the estate proceeding upon the ground that no other evidence, oral or documentary, was admissible. This motion was granted over the objection of appellants. Thereafter the court adjudged respondents to be entitled to distribution of the estate of decedent, one-half to each, and that appellants, the brother and sister, had no interest therein.

It appears from the inventory that decedent's estate, with the exception of a watch and a ring of little value, consisted of money and stocks, appraised at a total value of $22,684.48.

When the petition of Mrs. Bardzinski praying for admission of both testamentary documents as the last will of decedent and a codicil thereto came on for hearing, along with the petition of Mrs. Butkin that probate be refused to the first testamentary document and granted as to the last, the court, after reciting that findings of fact and conclusions of law in writing had been waived by the parties, ordered and adjudged as follows: ‘That the said Document heretofore filed, purporting to be the Last Will, with a Codicil thereto, of the said Deceased, be and it is hereby admitted to probate as such.’

From what has been said ti appears that the court adopted the theory of Mrs. Bardzinski that the two documents proposed for probate by her constituted a will and a codicil. And it is equally clear that the court then refused to adopt the theory of Mrs. Butkin that the letter was in fact the last will of decedent and worked a revocation of the previously executed will.

When the present proceeding now on appeal was decided the court made findings as follows: That decedent left a will dated June 12, 1946, ‘and an Holographic Will, wholly dated, written and signed in the handwriting of said Decedent, dated June 17–1946’; that after a contest of the will between said Leocadia Butkin, as contestant, and said Theresa Bardzinski, as contestee, both documents were admitted to probate, one as the will and the other as a codicil thereto; that Theresa Bardzinski was appointed executrix of the said will and codicil; that said codicil is in words and figures, as follows: [Quoting letter of June 17 referres to as a codicil]; that said codicil in letter form was addressed to Mrs. Bardzinski ‘who was named in said Will dated June 12, 1946, as Executrix thereof’; that there was no uncertainty in either the will of the codicil; that the codicil was a later testamentary disposition adequate by its terms to dispose of and that it did dispose of the entire estate of the decedent; that distribution of the estate should therefore be made pursuant to the terms and provisions of the codicil; that the codicil devises one-half of the property in the estate to Mrs. Bardzinski and one-half to Mrs. Butkin; that neither the brother nor the sister had any interest in the estate or any part thereof and neither was entitled to distribution of anything to him or her. The court concluded that distribution should be so ordered and by the judgment following it was ordered that when distribution was to be made it would be made in accordance with the findings.

The theories upon which the appellants proceeded in the trial court and which theories they again present to this court on appeal may be briefly stated as follows: First, they say that the order admitting the will and codicil to probate was absolute and unqualified with the result that both testamentary documents were adjudicated to constitute the entire will of decedent and that, therefore, in construing the will both documents must be considered. Any claim, they say, that the letter which the court found to be a codicil in fact revoked the prior instrument was disallowed in the order of admission to probate; and that order, not having been appealed from, became final and conclusive. Next, and based upon the foregoing, appellants contend that the conditions impressed upon the bequests made to respondents in the will are also impressed upon the bequests made to them in the codicil and appellants made to them true despite the fact there is no reference to those conditions in the codicil; that the dispositions in the codicil are additional or substituted gifts or bequests and therefore are impressed with the same condition, quality or incident impressed upon the dispositions in the will. From this they conclude that the interest of respondents in the estate of the decedent under the codicil would vest only in the event that the brother and sister failed to produce proof of their existence within a year from the date of the testator's death. Again, based upon the same premise that the codicil did not revoke the prior will, appellants seek to apply the rule of dependent relative revocation in that it must be considered that when the codicil was executed the testator did so under the mistaken belief that the brother and sister were not alive. Generally, they contend that when the entire will is construed that is to be found a clear intent on the part of decedent to modify and change the bequests to his brother and sister only in the event that they failed to appear within the year. Finally, appellants say that since the trial court refused to hear any testimony as to the facts and circumstances attending the execution of the codicil, the court erred in finding the codicil was an olographic will revocatory of the prior will for want of such evidence; and that it was error for the trial court to refuse to allow appellants the right to present evidence. In that respect they argue that when the will and codicil are considered as one entire document ambiguity and uncertainty appear.

Returning to the contention of appellants that by the order of admission to probate and the lack of any appeal therefrom it was conclusively adjudicated that the letter constituted a codicil to the formal will and did not revoke the same, it must be said that when the issues tendered to the trial court by the petitions for probate and the contest to the admission to probate of the formal will, as an unrevoked will of decedent, are considered there is much merit in appellants' position. It is true that when there is presented for probate one or more instruments claimed to constitute a will the only question legitimately before the court is whether or not such instrument or instruments constitute a will; it is equally true that in determining that question the court ordinarily has nothing to do with the construction of the will. In re Estate of Murphy, 104 Cal. 554, 38 P. 543; In re Estate of Cook, 173 Cal. 465, 468, 160 P. 553; In re Estate of Dunn, 32 Cal.App.2d 240, 243, 89 P.2d 667. Nevertheless it is also true that what documents, and what parts of documents go to make up a will must necessarily be decided in the first instance in the initial probate proceeding; and determinations so made have the effect of judgments and become conclusive in course of time. For example, in the case of In re Estate of Parsons, 196 Cal. 294, 237 P. 744, a document had been admitted to probate as the will of decedent. It contained dispositive paragraphs through which pencil lines and marks had been drawn. The order admitting the document to probate made no mention thereof. No appeal was taken nor contest filed within the year then allowed. On petition for partial distribution later it was found by the court that decedent had drawn these lines with intent to cancel the dispositive provisions contained in paragraphs through which the lines were drawn. The court held that the question of revocation must be presented and decided either when the will is offered for probate or by a proceeding or contest brought within the statutory time thereafter; that probate procedure contemplates a series of different proceedings, each of which is separate as to the matters embraced within its purview and that an adjudication as to each step in the series is intended to be final and not subject to review in a subsequent stage in the administration of the estate; that an order admitting a will to probate is appealable; that a proceeding for probate of a will is in rem instituted for the purpose of establishing the status of a written instrument; that an attack aimed at a will in response to a petition for distribution filed more than one year after the will was admitted to probate is collateral; the where questions of revocation are thus brought up the issue thus joined is one that could have been raised upon the proceeding for probate; that if not so done then the order admitting the document as a will is conclusive against any later attempt to invalidate part of the instrument upon claim of cancellation or revocation. See, also, In re Estate of Moeller, 199 Cal. 705, 251 P. 311.

But we think that it is unnecessary to further discuss this contention of appellants for the reason that, assuming it to be sound, it leaves the two documents standing as the complete and entire will of the decedent and to be construed under applicable rules of construction. It is too clear for controversy that there is a conflict between the provisions of the letter or codicil and the provisions of the formal will. The formal will was clear in all its terms and disposed of the entire estate. Five days later decedent executed the document admitted to probate as a codicil to the formal will. Its terms are equally clear and unambiguous. It also disposes of the entire estate and in a manner contrary to and destructive of the dispositive provisions of the formal will. Appellants would have the whole will construed in such way that the plain dispositions of the codicil would be made conditional and not absolute. Appellants say the entire will should be construed as providing for the brother and sister if they appeared and proved their survivorship and that if they did not then and then only respondents would take the whole estate under the codicil. But we think such a construction is unwarranted. In saying this we are not unmindful of the rules of construction referred to in the briefs of appellants to the effect that the cardinal rule or interpretation of wills is to find the intent of the testator; that as an aid in arriving at that intent an effort must be made to give expression to all the words of a will; that where the meaning of any part of a will is doubtful reference should be made to other parts of the will in an effort to clear up the doubt; that all parts of a will are to be construed in relation to each other and so as if possible to form one consistent whole. The foregoing rules are declared in the Probate Code and in numberless decisions of our appellate courts. But the code and decisions equally declare that where several parts of a will are absolutely irreconcilable the latter must prevail and that a clear and distinct devise or bequest cannot be affected by inference or arguments from other parts of the instrument. Probate Code, secs. 103, 104. We think the last two rules must be applied here and that the effect thereof cannot be avoided or departed from without doing violence to the clear last testamentary expression of decedent. He had made a formal will indicating throughout consultation with and the guidance of counsel. Five days later he wrote the document declared to be a codicil and by it he utterly destroyed the dispositive provisions of the formal will. No other construction is possible. The letter which constituted the codicil was addressed to Mrs. Bardzinski, whom he had named his executrix in his prior will. He directed her to sell his stocks, a direction which of course he must be presumed to have known she could not carry out except as the executrix of his will and he thus must be deemed to have had his formal will in mind; and he further told her that after the sale of the stocks, thus making his whole estate consist of money only, with immaterial exceptions, she was to divide everything that belonged to him between herself and Mrs. Butkin. Having in mind the dispositive provisions he had made in that will in favor of his brother and his sister, conditional though they were, he could not have said what he did in the codicil unless he had the clear intent to change his mind completely in respect to those dispositions and leave his entire estate to respondents here. There dispositive provisions appear last in the will and they are absolutely irreconcilable with the provisions favoring appellants, his brother and sister, and being later in time and place must prevail over them; the provisions of the codicil constitute clear and distinct devises last in point of time and place in the will and they cannot be affected by inference or argument from the other parts of the will.

We do not think that the doctrine of dependent relative revocation is applicable here. It is the position of appellants that the doctrine is applicable since the revocation, if any, was conditioned upon the mistaken belief of decedent that his brother and sister were not living. They say this mistaken belief is found in the will itself where the decedent makes the assertion it is doubtful if they are alive. It is obvious that if the doctrine has any application it must be because at some time during the five days between the making of the formal will and the writing of the letter the decedent mistakenly concluded that his brother and sister were dead, and for that reason wrote the letter to Mr. Bardzinski. This is a pure assumption finding no support anywhere in the testamentary documents. He did express his doubt of their survival in the formal will. If that doubt persisted and because of it he made the changes stated in the letter it was his right to do so and he would not be acting under mistake. His action would be founded upon an existing doubt. If he came to the mistaken belief that they were dead he neglected to state that fact either directly or by implication, and without such expression somewhere in the testamentary documents the court is without power to supply it.

What we have said disposes of all the contentions of appellants save perhaps only their contentions based upon their effort to have the trial court take evidence of the circumstances attending the execution of the two testimentary documents and the court's refusal to do so. In respect to these contentions it must first be said that, even assuming the court was presented with a situation where such testimony would be admissible, still we cannot from this record pass upon the matter because nowhere in the proceedings before the trial court, as disclosed by the record here, was there any offer or attempt to tell the trial court of what that evidence might consist. There was neither offer of proof nor statement that might be so construed. We could not therefore here in any case declare error for refusal to hear testimony. Dougherty v. Ellingson, 97 Cal.App. 87, 98, 275 P. 456; Hammond Lumber Co. v. Henry, 87 Cal.App. 231, 234, 261 P. 1027. But we think this point is immaterial because we do not think the situation presented to the trial court was one which would authorize the taking of testimony to aid the court in ascertaining the intent of the testator. When an uncertainty arises upon the face of a will as to the meaning of any of its provisions the testator's intention is to be ascertained from the words of the will, but the circumstances of the execution thereof may be taken into consideration, excluding the oral declarations of the testator. Probate Code, Sec. 105. But where the intent is plain the duty of the court is to declare that intent without regard to the consequences. In re Estate of Spreckels, 162 Cal. 559, 567, 123 P. 371. Such we hold to have been the situation here. The trial court was correct in refusing to resort to extrinsic evidence.

The judgment appealed from is affirmed.

I dissent: I cannot agree with the conclusion reached in the majority opinion.

It appears to me that in the absence of an appeal, the first order following the Butkin contest, which order admitted the two documents as a will and codicil, respectively, must be accepted as finally establishing the status of each document as such. In re Estate of Parsons, 196 Cal. 294, 237 P. 744; In re Estate of Dunn, 32 Cal.App.2d 240, 243, 89 P.2d 667.

At the outset the court was confronted with two documents either of which was sufficient in and of itself as the last will of the decedent. But the independent nature of the two instruments (particularly the second) should not be allowed to obscure the more fundamental fact to this controversy: that independently sufficient as each may be, both were admitted as one document containing two parts, one part thereof being the will and the other part thereof being the codicil thereto.

Thus, since that order has become final, both instruments must now be construed together as one document—the last will and testament of the deceased. Probate Code, sec. 101. Also the provisions of each part must be construed in relation to each so as to form ‘one consistent whole’ and it is only if the latter document is ‘absolutely irreconcilable’ with the former that it must prevail. Probate Code, sec. 103.

There can be no question but that in the formal will it was the very evident intent of the testator to first provide for his brother and sister, the natural objects of his bounty, and second, to provide for respondents subject to the conditions therein expressed. Such a situation well poses the reason for the rule that additional or substantial legacies given by a codicil are attended by the same incidences and conditions as were the legacies given originally by the will. In re Estate of Cross, 163 Cal. 778, 781, 127 P. 70; 1 Jarman on Wills, p. 149.

The formal will did not provide for equal participation by Bardzinski and Butkin. Paragraphs II and III gave, subject to the conditions previously mentioned, ninety per cent of the testator's estate to his brother and sister to be shared equally between them. By paragraph IV Bardzinski was given the remaining ten per cent of the testator's estate at the time of his death. Paragraph V gave Butkin $1,000.00 but only in the event that his brother and sister failed to establish his or her existence as provided. The last paragraph further provided that such failure of proof would cause the bequests to said legatees to lapse, and Bardzinski would then receive all of the residue.

The effect of applying to the present case the rule enunciated in the Re Estate of Cross, supra, simply means that under the codicil Bardzinski and Butkin would share equally in the remainder of the testator's estate after distribution to the brother and sister of his or her share. Surely such a construction is not so inconsistent with the formal portion of his will as to result in a complete revocation thereof, and surely it cannot be said that such a conclusion is more violent in its application to the facts and circumstances presented in the instant case than was the conclusion reached by the Supreme Court in Re Estate of Cross, supra, upon the facts and circumstances there presented.

Without question the first document makes a clear disposition of the entire estate. It is also true that the second document, standing alone, likewise makes a clear disposition thereof. It is only when the second is read in conjunction with the first that the second becomes ambiguious. Hence it necessarily follows that whatever inconsistency, ambiguity or doubt may exist, exists only because of the second document. This situation points up the reason for the further rule that a clear disposition by will should not be disturbed by a doubtful expression or an inconsistent disposition contained in a codicil. In re Estate of Dominici, 151 Cal. 181, 90 P. 448; In re Estate of Moorehouse, 64 Cal.App.2d 210, 148 P.2d 385.

Finally it must be noted that the construction approved in the majority opinion excludes the natural heirs of the testator in favor of strangers, and hence conflicts with the well established rule that where there is any doubt as to the intent of the testator the construction should be adopted which favors those of the blood of the testator to strangers. In re Estate of Norrish, 135 Cal.App. 166, 26 P.2d 530.

Therefore, in view of the rules heretofore mentioned, it is my conclusion that the order should be reversed (1) because of the finality and conclusiveness of the first order admitting the two documents to probate as one instrument, the will and the codicil of the testator; (2) because of the rule which necessarily follows impressing upon the legacies given by the codicil all of the conditions and incidences of the legacies given by the will; (3) because of the evidence intent of the testator to first provide for his brother and sister, the natural objects of his bounty, and (4) finally because of the rule relating to inconsistencies and ambiguities which are presented not because of anything in the formal will but only because of the codicil which, when viewed as an independent instrument and not as a part of the whole, presents the element of inconsistency.

VAN DYKE, Justice.

ADAMS, P. J., concurs.

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