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

ESTATE of Josephine H. GRAHAM, Deceased. Jean E. FITZGERALD, Claimant and Appellant, v. The SALVATION ARMY OF CALIFORNIA, a corporation, Claimant and Respondent. *

Civ. 22172.

Decided: April 29, 1957

Hugh E. McManus, Los Angeles, for appellant. Meserve, Mumper & Hughes, J. Robert Meserve and Douglas M. Shumway, Los Angeles, for respondent.

Appeal by Jean E. Fitzgerald from judgment rendered in favor of the Salvation Army of California in a proceeding for determination of heirship under the will of Josephine H. Graham, deceased. $The question presented is the correctness of the trial court's construction of paragraph Twelfth of the will which reads: ‘When my said brother shall have died, then the Trustee shall distribute the remaining portion of the Trust as follows: To Jean E. Fitzgerald, the sum of Two Thousand Dollars ($2000.00) and any part of the personal property she may desire. The residue of my property and estate to go to The Salvation Army of California, a religious and charitable corporation.’ The holding is found in the following conclusions of law: ‘When testatrix used the words ‘personal property’ in paragraphs Twelfth and Fourteenth of her Will admitted to probate herein she intended this phrase to be used in its popular sense to mean personal effects, furniture, furnishings and other tangible personal property in and about the premises of her home. Testatrix did not mean that the words ‘personal property’ in such paragraphs included intangible personal property such as cash, stocks, securities and bank accounts. * * *

That Jean E. Fitzgerald is entitled to have distributed to her on the death of Fred L. Graham the sum of $2,000 and any part of testatrix' furniture, furnishings, personal effects and other tangible property of similar nature found at testatrix' home premises that the said Jean E. Fitzgerald may desire. * * * The Salvation Army is entitled to have distributed to it on the death of Fred L Graham the rest and residue of testatrix' estate after bequest made to the said Jean E. Fitzgerald, said residue consisting of balance of cash, securities, stocks, other intangible properties, real properties and remaining tangible personal property not selected by and distributed to the said Jean E. Fitzgerald.'

Appellant's statement of claim says: ‘That petitioner Jean E. Fitzgerald has elected to, and does hereby elect and select to take all of the personal property, and stocks, bonds and cash, except the sum of $1.00, that may be on hand in said trust estate upon date of death of said Fred H. Graham. * * * That your petitioner's claim is that she is entitled to receive and have distributed to her under said Paragraph 12 of said Will all of the stocks, bonds, cash, except the sum of $1.00, and all personal property that may be on hand on date of death of said Fred H. Graham.’

Josephine H. Graham, who had never been married, died on January 6, 1955, at the age of 91 years, leaving a last will dated August 6, 1947. She had no relatives except a brother, Fred L. Graham, who resided with her and is ‘in his late eighties.’ Appellant Fitzgerald, a stranger to the blood of decedent, was a realtor and insurance agent with whom Miss Graham had done business over the years and whom she considered her ‘close friend,’ although the evidence of any real intimacy between the two women is decidedly sketchy. Miss Graham had frequently expressed to her attorney and her financial advisor great admiration for the Salvation Army and its work. She left an estate consisting of realty appraised at $40,000 and personal property consisting of furniture and furnishings of her home, preferred and common stocks, and an oil and gas lease, which were appraised in the aggregate at $117,925.92. The household furniture and furnishings were valued at $125. There was no cash in the estate at the time of death, for decedent's money was in two joint tenancy bank accounts, with her brother and Mrs. Fitzgerald as co-tenants. Those joint accounts at the time of death amounted to approximately $50,000. Mrs. Fitzgerald transferred half into her own bank account and the other half into a joint tenancy account with Fred L. Graham. She now claims she is entitled to the $117,925.92 of personalty (less $1.00) to the exclusion of the Salvation Army.

The major contention of appellant is that the court erred in receiving parol evidence upon the theory that the will is ambiguous on its face; her counsel assert that there is no uncertainty, that the phrase ‘personal property’ is a technical term and must be given the meaning attributed to it by § 663, Civil Code, i.e., including ‘every kind of property that is not real.’

It is a mistaken notion that a will can be interpreted without any reference to the property upon which it operates or the circumstances in which it was made. Paley v. Superior Court, 137 Cal.App.2d 450, 455–456, 290 P.2d 617, 620: ‘The will on its face is not ambiguous. * * * But it is necessary to apply every will to the subject matter upon which it is to operate. To that end extrinsic evidence is always necessary. * * * Wigmore on Evidence, section 2470, page 227 says: ‘The truth had finally to be recognized that words always need interpretation; that the process of interpretation inherently and invariably means the ascertainment of the association between words and external objects; and that this makes inevitable a free resort to extrinsic matters for applying and enforcing the document. ‘Words must be translated into things and facts.’ Instead of the fallacious notion that ‘there should be interpretation only when it is needed’, the fact is that there must always be interpretation. Perhaps the range of search need not be extensive, and perhaps the application of the document will be apparent at the first view; but there must always be a traveling out of the document, a comparison of its words with people and things. The deed must be applied ‘physically to the ground.’ * * * Once freed from the primitive formalism which views the document as a self-contained and self-operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which go to make clear the sense of the words,—that is their associations with things.''

When the language of the document before us is applied to its factual setting, an ambiguity arises. See the Supreme Court's most recent definition of ambiguity in Beneficial Fire & Casualty Ins. Co. v. Kurt Hitke & Co., 46 Cal.2d 517, 524–525, 297 P.2d 428. Such an uncertainty, whether deemed latent or patent, is removable by resort to extrinsic evidence. Paley v. Superior Court, supra, 137 Cal.App.2d at page 457, 290 P.2d at page 621; In re Estate of Sargavak, 41 Cal.2d 314, 319, 259 P.2d 897. Section 105, Probate Code, says: ‘[W]hen an uncertainty arises upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, excluding such oral declarations,’ i. e., ‘oral declarations of the testator as to his intentions.’

The crux of appellant's argument is reliance upon § 106, Probate Code, which is as follows: ‘The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. Technical words are not necessary to give effect to any species of disposition by a will; but technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense.’ The portion of the section most pertinent to the instant problem is the phrase ‘but technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention.’ ‘Context’ means ‘the part or parts of something written or printed which precede or follow a text or quoted sentence, or are so intimately associated with it as to throw light on its meaning.’ 17 C.J.S. p. 178. ‘It is the general principle of legal interpretation that a passage or phrase is not to be understood absolutely as if it stood by itself, but is to be read in the whole of the context; i. e. in its connection with the general composition of the instrument.’ State v. Heyer, 89 N.J.L. 187, 98 A. 413, 414, Ann.Cas.1918D, 284. The application of the statutory rule at bar is dependent upon the context of the will and like all rules of interpretation must yield to the dominant purpose of the testatrix as deduced from a consideration of the entire instrument. ‘It is generally recognized that a testamentary instrument is to be examined with a view to discovering the decedent's testamentary scheme or general intention, and that the apparent meaning of particular words, phrases and provisions is to be subordinated to this scheme, plan, or dominant purpose. The technical import of words should not prevail over the obvious intent of the testator. * * * The cited authorities are of present value in that they indicate the propriety of applying to the phrase ‘all the personal property’ a limited and restricted meaning and operation consistent with the testator's evidence intention.' In re Estate of Puett, 1 Cal.2d 131, 133–134, 33 P.2d 825, 826. ‘In determining the intention of the testatrix here we must, as appellants insist, stand by the words of the will, and no intention should be attributed to the testatrix which cannot reasonably be drawn from the language of the document itself; but it is generally recognized that a testamentary instrument is to be examined with a view to discovering the decedent's testamentary scheme or general intention, and that the apparent meaning of particular words, phrases and provisions is to be subordinated to this scheme, plan or dominant purpose. [Citation.] The technical import of words should not prevail over the obvious intent of the testator.’ In re Estate of La Fetra, 14 Cal.App.2d 599, 601, 58 P.2d 678, 679.

Though it may be conceded that the statutory definition of ‘personal property’ controls in solving technical problems, that connotation is not universally or inexorably attributed to the term. Frequently it means ‘personal effects' when used in wills. ‘The words ‘personal property’ have many meanings. * * * The broad meaning happens to coincide with the statutory definition. When under such circumstances a court is construing the meaning of a will it will not be confined to an examination of the meaning of the words used in one particular sentence without regard to other sentences contained in the will. But it will consider all of the sentences and when possible give some force and effect to each one. Probate Code, sec. 103.' In re Estate of Combs, 136 Cal.App. 286, 291, 28 P.2d 711, 713. It was held that the phrase ‘personal property,’ when used in wills considered in the following cases, meant ‘personal effects' only: In re Estate of Combs, supra, 136 Cal.App. 286, 291, 28 P.2d 711; In re Estate of Norrish, 135 Cal.App. 166, 169, 26 P.2d 530; In re Estate of La Fetra, supra, 14 Cal.App.2d 599, 603, 58 P.2d 678; In re Estate of Kruger, 55 Cal.App.2d 619, 623, 131 P.2d 619; In re Estate of Puett, supra, 1 Cal.2d 131, 134, 33 P.2d 825; In re Estate of Duraind, 51 Cal.App.2d 206, 211–212, 124 P.2d 330. In the next cited cases such items as cash, notes, stocks or bonds were held not to be included within the phrase ‘personal property’: In re Estate of Cowden, 10 Cal.App.2d 481, 51 P.2d 1165; In re Estate of Marin, 69 Cal.App.2d 147, 149, 158 P.2d 412; Wolf v. Schaeffner, 51 Wis. 53, 8 N.W. 8, 10; In re O'Malley's Estate, 238 Wis. 456, 300 N.W. 10, 12; Tallman v. Tallman, 3 Misc. 465, 23 N.Y.S. 734, 741; Obetz v. Boatmen's Nat. Bank of St. Louis, 361 Mo. 221, 234 S.W.2d 618, 623.

Not without superificial persuasiveness is appellant's argument that the instant will is couched in legal phraseology and therefore the words ‘personal property’ must have their technical meaning under the compulsion of § 106, Probate Code. It is true that the document in the main bears the earmarks of legal draftsmanship. This is emphasized by paragraph Fifth which leaves the residue to Mrs. Fitzgerald in trust for the brother, Fred L. Graham, and is in customary legal language. But here and there appears a layman's wording, so worked into the legal scheme as to suggest a copying and adaptation. For instance, the executrix is to serve ‘without bonds or security;’ the devise of a lot at Lake Arrowhead to William H. Aston, a friend, concludes with the phrase ‘asking him to not let the fact of my death interrupt his friendship for my brother;’ the matter of a successor trustee is handled thus: ‘The word ‘Trustee’, as used by me, includes the possibility of ‘Successor Trustee’;' no successor trustee is named and no specific grant of power is made to one. Payment of debts is directed ‘as soon after my death as funds on hand make it possible to do so.’ These phrases suggest a layman's authorship rather than that of a lawyer. A copying and amending becomes a compelling inference when other circumstances are considered.

In 1944, Mr. James N. Hastings, a wellknown attorney, had drawn a will for Miss Graham; shortly prior to that time Mr. Dee Holder, another prominent lawyer, had drawn one for her. Mr. Hastings testified that ‘my work in preparing the Will was just to change one that she brought in.’ Inferentially, that was the Holder will. The Hastings document was delivered to her. Soon she went back to Mr. Holder and had him draw another will which was handed to her. She was an intelligent woman; must have known just what Mr. Hastings had done; having the work of these two lawyers available it would not be unnatural for her to borrow their work and make her own draft. If this occurred it was not due to any dissatisfaction with Mr. Holder for, although she did not consult him of Mr. Hastings, or Mr. Otis, her financial advisor, about the will which was admitted to probate, that document says: ‘Because I have found the legal advice and assistance of my attorney Mr. Dee Holder, both wise and dis-interested, I suggest to my said Trustee that she continue to use that legal advice whenever necessary.’ Had Miss Graham deemed legal services advisable she undoubtedly would have consulted Mr. Holder or Mr. Otis, or both of them.

That Miss Graham or Mrs. Fitzgerald prepared this 1947 will in the manner suggested appears from the Fitzgerald testimony and her ultimate admissions in open court. On the witness stand she swore that she had no part in the preparation of the will and never saw it until decedent's safety box was opened for inheritance tax purposes. An executed duplicate was found and first seen after Miss Graham's death, in a box in her home, so the witness said. She also testified that she never prepared or typed any documents for Miss Graham, did not prepare this will or know who did so and, though shown to have been present at its execution, did not recall the fact or any mention of it. The will was executed at the office of Liberty Escrow Company, which Mrs. Fitzgerald used in her real estate business. It was executed in duplicate, which is contrary to the custom of lawyers. No lawyer was present and the document does not bear the customary name or address of any attorney.

On the basis of two exemplars of typewriting appearing upon documents concededly prepared in Mrs. Fitzgerald's office (Exhibits 1 and 2), Mr. John J. Harris, an expert witness, testified that the two exemplars and the will were typed on the same machine, a Royal of pica type style, and that the operator was not a touch typist but a ‘hunt and peck’ operator. For years, Viola Dawson had resided with Mrs. Fitzgerald, she owned that kind of Royal typewriter and was a ‘hunt and peck’ typist. After the Harris testimony a recess was taken and then appellant's counsel informed the court that he had just conferred with Mrs. Fitzgerald and Miss Dawson, saying: ‘So during the recess Mrs. Fitzgerald has told me that yes, she believes that the original Will as admitted to probate here was drafted on the Royal typewriter in the house. And it is also her memory that she requested Viola Dawson to do the typing. And Viola Dawson says that she does not remember. But she uses the words it is possible that she did do it.’ He later offered to stipulate ‘that the original Will as heretofore admitted to probate was typed by Miss Viola Dawson on the Royal typewriter in the Dawson home, and, of course, that would naturally include the copy thereof.’ Opposing counsel did not accept the proffered stipulation because it did not include the fact of this being done at the direction of Mrs. Fitzgerald. After further colloquy this formal admission was made: ‘The Court: So that there may be no misunderstanding, then the admission is to the effect that the original Will was typed on a Royal typewriter by Miss Dawson in her home. Mr. McManus: Yes, your Honor.’ Miss Dawson was later recalled as a witness and testified that she must have written the will, though she did not remember it, that she had a Royal typewriter in the house. Mrs. Fitzgerald, though subsequently called as a witness in her own behalf, was not questioned about this matter.

This failure to explain a crucial impeachment of her story raised a presumption that any testimony she might give would be prejudicial to her own interests. “It is a well-settled rule that when the evidence tends to prove a material fact which imposes a liability on a party and he has it in his power to produce evidence which from its very nature must overthrow the case made against him if it not founded on fact, and he refuses to produce such evidence, the presumption arises that the evidence, if produced, would operate to his prejudice, and support the case of his adversary.' [Citations.] This principle applies with, perhaps, greater force where a party charged with conduct which is appearently suspicious or dishonorable has an opportunity to explain it, but fails to do so.' Bone v. Hayes, 154 Cal. 759, 765, 99 P. 172, 175. Of course the presumption thus arising does not supply affirmative evidence of what actually happened, In re Estate of Bould, 135 Cal.App.2d 260, 265, 287 P.2d 8, 289 P.2d 15, but it adds weight to adverse inferences arising from other evidence.

Mrs. Fitzgerald is a stranger to the blood of decedent, but six days previous to the making of the will she had been placed in control and probable ultimate ownership of two bank accounts which Miss Graham had;1 one, a savings account, then had $10,867.43 in it (and grew to $48,267.75 by time of death); the amount of the commercial account in 1947 does not appear, but it was $5,377.52 at the time of death. Miss Graham had repeatedly expressed admiration for the Salvation Army and its work. The will furnishes internal evidence of her intention.

After creating for her brother a trust of the residue, practically all of her estate, she makes provision for its distribution in the event that the brother predeceases her and in the event of his surviving.2 In each instance the property goes ‘To Jean E. Fitzgerald, the sum of Two Thousand Dollars ($2000.00) and any part of the personal property she may desire. The residue of my property and estate to go to The Salvation Army of California, a religious and charitable corporation.’ Having placed her bank accounts in joint tenancy testatrix would not expect to have any cash in her estate; she then had stocks and bonds worth $70,000 to $75,000 and real estate then worth $30,000 which grew to $40,000 at the time of the death, some seven and one-half years later. Did Miss Graham intend that Mrs. Fitzgerald should have all of her estate except the real property? If so, why not say that? ‘Any part of the personal property she may desire’ would not seem to refer to stocks and bonds and oil lease, not when used by one who ‘had a very keen mind,’ as appellant said Miss Graham had. She must have known that no business woman (for such Mrs. Fitzgerald was) would elect not to take valuable properties like those. She must have recognized that human nature does not work that way. On the other hand, her personal effects were so meager,—household furnishings worth $125 at death and no jewelry except ‘a little cross of like you would have from the Catholics or the Lutherans or whoever you are, on her little jacket’,—so meager as to raise a question of whether Mrs. Fitzgerald would want all or any part of them. ‘It does not seem to us reasonable to assume that the testatrix believed that any of the very valuable stocks and bonds embraced in her personal property would be rejected by appellants; while it is, in our opinion, reasonable to assume that she felt some of her personal effects or household goods might not be acceptable to the four nieces and nephews. This conclusion, in our opinion, is consistent with and does no violence to the expressed intention of the testatrix because it harmonizes with decedent's apparent scheme or general intention.’ In re Estate of La Fetra, supra, 14 Cal.App.2d 599, 603, 58 P.2d 678, 680.

If Mrs. Fitzgerald was to have all stocks and bonds and the oil lease there would be little point in giving her any sort of an election. If testatrix had her investments in mind as a legacy to Mrs. Fitzgerald there would appear to be no occasion for leaving the cash bequest of $2,000 to her. Under Mr. Otis' guidance those investments were increasing in value over the years, they had grown from $70,000 to $100,000 between 1940 and 1951, and she had no reason in 1947 to fear a reverse trend. As the bank accounts were already controlled by appellant, testatrix had no occasion to expect any cash to go into her estate and the gift of $2,000 would normally come out of the investments; if she wanted that legatee to have all those valuable items she naturally would not have required the sale of those assets to raise the cash when the legatee would be entitled to take all of them in kind. The record does not disclose what the rents from the realty were and hence there is no basis for inferring that she expected them to take care of the $2,000 bequest as well as expenses of administration or that she expected the realty to be sold for that purpose. Upon appellant's construction of the will the gift of the $2,000 in addition to the investments would be a somewhat inexplicable duplication by the testatrix, while the court's construction of the will attributes to her normal and reasonable mental processes.

Finally, the will expressly authorizes Mrs. Fitzgerald, as trustee of the estate, to convert into cash any realty other than the residence (appraised in probate at $9,000). This made it possible for her, during the brother's lifetime, to reduce the Salvation Army's share of the residue to that figure. If that were done she in all probability would ultimately absorb not only the bank accounts ($50,000 at death), but all the real and personal property except the $9,000 home place. The total appraised value of $157,925.92, less $9,000, leaves her $148,925.92; this in addition to the bank accounts. An inference that testatrix so intended seems not a reasonable one and certainly not inevitable. Though Miss Graham designated Mrs. Fitzgerald as a close friend when making her a joint tenant of the bank accounts, and manifested confidence in her by permitting her to draw on those accounts over the years, the record affords little, if any, substantial basis for a finding that she desired her to take all of the estate to the practical exclusion of the Salvation Army.

A reasonable inference is enough to sustain the trial court's finding of the testatrix' intent; to overthrow it appellant is required ‘to demonstrate that there is no substantial evidence to support the challenged findings.’ Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550, 552; see also, People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758; Industrial Indemnity Co. v. Golden State Co., 117 Cal.App.2d 519, 538, 256 P.2d 677. The evidence amply sustains the court's findings that the will ‘was not drawn or prepared by or at the direction of an attorney at law or person technically trained in the study of law or drafting of wills,’ and that ‘[w]hen testatrix used the words ‘personal property’ in paragraphs Twelfth and Fourteenth of her Will admitted to probate herein she intended this phrase to be used in its popular sense to mean personal effects, furniture, furnishings and other tangible personal property in and about the premises of her home. Testatrix did not mean that the words ‘personal property’ in such paragraphs included intangible personal property such as cash, stocks, securities and bank accounts.'

The argument of counsel for appellant which is based upon comparison of an earlier will with the probated document cannot be entertained, for that earlier will was excluded upon objection of appellant's attorney and was never received in evidence. Nor can arguments as to the alleged inconsistency between the court's oral ruling and its formal findings prevail. 4 Cal.Jur.2d § 536, p. 391; Southern California Freight Lines v. San Diego Electric Ry. Co., 66 Cal.App.2d 672, 676, 152 P.2d 470.

Appellant's claim of error in receiving extrinsic evidence has been covered by the foregoing discussion; counsel do not complain of any specific evidence thus received except expressions of testamentary intent, but the record shows that they were consistently excluded by the trial judge whenever the point was raised.

Judgment affirmed.


1.  Miss Graham was then 83 years old; her brother about 79; Mrs. Fitzgerald's age is uncertain for her own testimony varied from 58 to 70 years.

2.  Paragraphs Twelfth and Fourteenth.

ASHBURN, Justice.

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

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