IN RE: SARGAVAK'S ESTATE.

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

IN RE: SARGAVAK'S ESTATE. KURKJIAN et al. v. OHANNESON et al.*

Civ. 18869.

Decided: June 19, 1952

Cameron & Perkins; William Kinley; Simpson & Wise, Long Beach, by William Kinley and George E. Wise, Long Beach, for appellants. C. W. Byrer and Charles E. Hobart, Los Angeles, for J. G. Ohanneson. Robert M. Dulin, Beverly Hills, Spurgeon Avakian, Oakland, and Melvin E. Fink, Los Angeles, for Samuel G. Mahdesian.

From an order determining heirship and an interest in the estate of Rebecca Ruby Sargavak, deceased, petitioners appeal.

Facts: Decedent, who died March 22, 1947, left the following holographic will:

‘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'

The above document was offered for probate as a codicil to a former will executed by decedent on July 9, 1945. The former will had disposed of her property to certain named friends and relatives, and the beneficiaries thereof contested the admission of the codicil to probate on the ground that it was not intended as a testamentary document. The trial court found for the proponent Ohanneson and admitted the instrument to probate as a codicil. This order was affirmed by the Supreme Court. (In re Sargavak's Estate, 35 Cal.2d 93, 216 P.2d 850, 21 A.L.R.2d 307.)

Thereafter appellants herein, nephews and nieces of decedent who are her heirs at law, filed a petition for order to determine heirship for the purpose of construing the meaning of the codicil. Respondents J. G. Ohanneson and Samuel G. Mahdesian each filed a separate answer and statement of claim alleging that by the codicil decedent made a full and complete disposition of her estate whereby one half was devised and bequeathed to Ohanneson and one half to Mahdesian.

At the hearing of the heirship petition respondents objected to introduction of any testimony by petitioners and moved to exclude testimony on the ground there was no issue of fact to be determined concerning the interpretation of the codicil because there was no ambiguity in the instrument and nothing was to be explained by extrinsic evidence. The court sustained this view and found the codicil revoked the former will except as to the meaning of Mahdesian as executor and adjudged that the codicil devised and bequeathed decedent's estate one half to each of respondents.

Questions: First: Did the trial court err in interpreting the codicil above set forth to mean that decedent left one half of her estate to each of the respondents?

No. Where questions presented on a subsequent appeal were necessarily involved in a former appeal, and the conclusion reached on the former appeal could not have been reached without expressly or impliedly deciding the question subsequently urged, the decision on the former appeal is the law of the case and rules throughout all subsequent stages of the action. (Kirman v. Borzage, 89 Cal.App.2d 898, 900 [2], 202 P.2d 303.) This rule is applicable in the instant case.

On the former appeal (Estate of Sargavak, Supra), at page 100 et seq., of 35 Cal.2d, at page 854 of 216 P.2d the Supreme Court said: ‘If it (the codicil) was intended as contestants assert, only as a notification to Mrs. Shooshan and her daughter that decedent ‘didn't want them to be in her will at all’, the testimony offers no explanation for the statement that ‘She leaves everything she has to her Boy Sam Mahdesian & her layer J. G. Ohanneson.’ Nothing in the evidence before the trial court clearly negatives the testamentary implication carried by those words. The impulse that prompted decedent to exclude Mrs. Shooshan from any share in her estate does not dispel the inference that at the same time she directed the disposition of her property to the two men who had served her and her husband as friends, counsel, and business advisers. * * * It cannot be said that it is unreasonable upon this evidence to conclude that Mrs. Sargavak, angered and harrassed by Mrs. Shooshan, decided to leave her property to two men she had known for more than forty years and for whom she had demonstrated a warm personal affection. This purpose is clearly expressed by the terms of the instrument.' (Italics added.)

In determining whether the codicil was written with a testamentary intent, the Supreme Court necessarily considered whether or not the instrument was ambiguous, and held the codicil was not ambiguous and made an unequivocal disposition of decedent's property to respondents. Therefore the decision of the court became the law of the case and probate court properly followed the decision in entering its decree.

Second: Did the trial court commit prejudicial error in refusing to admit testimony of the circumstances surrounding the execution of the codicil in support of appellants' argument that the codicil contained ambiguities?

No. There is 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 provisions does not render the will ambiguous.

The instrument is unambiguous and a testamentary intent is shown by the language used. Thus extrinsic evidence may not be considered.

Affirmed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.

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