IN RE: the ESTATE of Carolina CUNEO

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District Court of Appeal, Third District, California.

IN RE: the ESTATE of Carolina CUNEO, whose name is sometimes written Carolina Poggi, Deceased.

Civ. 10372.

Decided: February 15, 1963

Schaber & Cecchettini, Sacramento, and George Gard Chisholm, Jackson, for proponent-respondent-appellant Mondani. Wilke, Fleury & Sapunor, Sacramento, for proponent-respondent-appellant De Paoli. Robert A. Zarick, Thomas A. Wahl, Sacramento, for contestent-appellant.

Carolina Cuneo died November 7, 1958. She left surviving six children: Julia (Giulia) Cuneo, Clara Mondani, Sarah (Serafina) Carboni, Louise (Luisa) Varni, Suzanne (Susie) Dobbert, and Andrew (Andro) Cuneo. Decedent, in 1943, commenced expression of her testamentary intent. Between then and her death in 1958 she made four written testamentary instruments, three of which have been offered for probate herein. (The first of these, dated April 10, 1943, is in evidence but was not offered for probate.)1

Decedent left a modest estate consisting principally of a small farm, cattle on the farm, and a savings account. The appraised value is $57,698.98.

All the testamentary writings of decedent are holographic and written in Italian except the 1954 will. They may be summarized as follows:

(1) The April 10, 1943 will left to her children, Sarah, Louise, Suzanne and Andrew and to a grandson, Joe Carboni, $500 each. The entire estate, excepting these specific bequests, was left to Julia and Clara.

(2) The January 20, 1951 will left to her children, Sarah, Louise, Suzanne and Andrew, and to said grandson, $25.00 each. The real property was devised to Julia and Clara, the home to Julia and ‘the other’ to Clara ‘when Giulia comes home from the hospital.’ Both places were to include the cattle on them. The residue of the estate was left to Julia and to Clara in equal shares. Clara was to act as executrix and live with, care for, and manage the affairs of, Julia.

(3) On May 13, 1954, the third will was drawn by an attorney. It revoked ‘all Wills by me heretofore made.’ A specific bequest of $500 was made to Hilda Cuneo, a daughter-in-law. The residue was to be distributed as follows: A life estate in Julia or ‘until she marries' and upon her death (or upon her marriage) the remainder to decedent's children, including Clara and Julia and her grandson, Joe Carboni, in equal shares. Angelo De Paoli, an attorney, was named executor to serve without bond.

(4) The last instrument was dated October 15, 1956. It commenced: ‘Carolina Cuneo. So I add this to my testament.’ It provided that ‘once I die my daughter Clara to take my place and she will act in my stead as if it were I.’ There followed, without punctuation, the following: ‘I recommend Giulia [Julia] to her she and Clara will be the owners of everything I own while they live nobody will be able to disturb them.’ After her signature is the statement: ‘my will is in the possession of De Paoli.’ Also: ‘After my death Clara will be the manager because Giulia is not good at managing. She is to take my will from De Paoli and pay whatever is to be paid.’

The daughter, Julia, mentioned above, was mentally incompetent and had been in a mental hospital during all or most of the period covered by these testamentary acts.

On August 2, 1957, Henry Mondani, husband of decedent's daughter, Clara, called on attorney Angelo De Paoli at decedent's request and obtained the original of the May 13, 1954 will. On August 21, 1957 he manually delivered this will to decedent who, at that time, stated the will was not what she wanted. A witness, Carlotta Feltracco, testified that decedent at the time stated she intended to burn the will. There is no evidence in the record of the subsequent disposition of the will. It was not found among her effects when she died.

On the 1956 instrument described above, which was found among her other valuable papers, together with the original 1951 will, the following words were stricken out in pencil: ‘my will is in possession of De Paoli’ and also ‘take my will from De Paoli.’ Where changes and alterations are made in a holographic will which is in the possession of the decedent, the inference is that they were made by her. (Estate of Stickney, 101 Cal.App.2d 572, 575, 225 P.2d 649.)

From the evidence stated above the trial court found that the 1951 document was the will of decedent; that it had been revoked by the general revoking clause of testatrix' 1954 will; that the latter will was destroyed by decedent with intent to revoke it and it was revoked; that decedent intended the 1956 document to remain in effect; that said writing, although a codicil in declaration (N.B. ‘So I add this to my testament’) was a complete will in and of itself. The findings state ‘that it is testamentary in character; that it effectively disposes of her property2 and is sufficient legally to stand as a Will by itself.’ The court adjudged that this instrument alone should be admitted to probate.

Andrew Cuneo, Angelo De Paoli and Clara Mondani appeal.

Andrew contends that decedent died intestate. He travels the following route to reach this conclusion: The 1954 will revokes the 1951 will which was never revived. The 1954 will was itself revoked. The 1956 document was on its face a codicil. Probate Code, section 79 provides: ‘The revocation of a will revokes all its codicils.’ This statute applies and the 1956 ‘codicil’ was revoked when the 1954 will was revoked. Therefore, decedent died intestate.

The contention of De Paoli is this: That the 1951 will was expressly revoked by the 1954 will and was not later revived or republished; that the 1956 ‘codicil’ as originally written referred to, and was meant to be a codicil of, the 1954 will and revoked all provisions inconsistent with its terms; but the provision of the 1954 will appointing De Paoli as executor was not inconsistent with the 1956 codicil and was not modified thereby; that conceding the 1954 will was destroyed with intent to revoke, such revocation was under the mistaken belief that the 1956 ‘codicil’ could be given effect according to the testatrix' intent; that it could not be, however, because of the pretermitted heirs' statute. (Prob.Code, sec. 90.)3 Therefore, under the doctrine of dependent relative revocation (to be hereinafter discussed) the 1954 will as modified by the 1956 ‘codicil’ remains unrevoked. And the two should be admitted to probate.

Appellant Clara Mondani contends that although the 1951 will was originally revoked by the revocation clause of the 1954 will, it was effectually revived (by operation of the doctrine of dependent relative revocation) when the 1954 will was revoked and when the testatrix made the ‘strike-out’ modifications of the 1956 ‘codicil.’

This court has reached the following conclusions: (1) that the testatrix did not intend to, nor did she, die intestate; (2) that the 1956 instrument, although its form could permit its characterization as a ‘codicil’ and it was intended as such when appended to the 1954 will, it did not fall when the 1954 will was revoked. Because, standing alone, after revocation of the 1954 will, the 1956 writing disposes of the testatrix' entire property. Therefore it is, as the trial court has found, a testamentary document complete on its face; that Probate Code, section 79 is, therefore, inapplicable; (3) that the 1956 instrument, although now standing alone, was, however, originally a part of the 1954 will; that, as a part thereof, the other children were not forgotten; they were mentioned; that the pretermitted heir statute (Prob.Code, sec. 90) is, therefore, inapplicable; (4) that revival of the 1951 will and its admission to probate is unnecessary and useless.

Rationalization of our position should begin with a few general observations. First, a study of the facts above stated and of the successive testamentary instruments made by decedent leaves no doubt that at the core of her intent throughout the years was that Julia, the incompetent daughter, should be the primary object of her bounty. Secondly, it is clear that intestacy would defeat that purpose, since equal distributive shares to each of six children after payment of debts and expenses of administration would give to none any generous sum, and would leave Julia in no preferred position whatever; but on the contrary, presumably in straitened financial circumstances. The same may be said of any construction which, after admitting the 1956 ‘codicil’ to probate as a will, would leave the children unmentioned therein as pretermitted heirs.

And the next generalization to be made is that if intestacy were to occur it would be through the process of utilizing rules designed as aids to determine testamentary intent, as a means of defeating that which was obviously the actual intent of this decedent.

We believe we can employ timetested rules to reach a happier result, one consonant with the testatrix' intent. We start with further generalization.

‘The law favors testacy as against intestacy, and any construction of a will that would result in total or partial intestacy must be avoided, if possible.’ (53 Cal.Jur.2d sec. 398, p. 677, and see cases cited note 16; see, also, Probate Code, section 102; Estate of Stadler, 177 Cal.App.2d 709, 713, 2 Cal.Rptr. 515.)

Wills are to be construed according to the intention of the testator (Prob.Code, sec. 101; Estate of Stadler, supra, p. 711, 2 Cal.Rptr. p. 516), and ascertainment of that intent is ‘the cardinal rule.’ (Estate of Salmonski, 38 Cal.2d 199, 238 P.2d 966.)

Where a testator over a period of years evidences by a series of testamentary acts, a continuous consistent testamentary plan, this must be given weighty consideration to rebut an inference of an intent of revocation. (Estate of Ronayne, 103 Cal.App.2d 852, 858, 230 P.2d 423.)

The contention of Andrew Cuneo that the 1956 codicil must fail under Probate Code, section 79, because the will to which it related was revoked, is unsound. We agree with his first premise that the 1954 will was revoked. (This we will discuss below.) But the second premise that its revocation caused the revocation of the 1956 instrument is a non sequitur, because, although declared a writing to be added to the 1954 will and therefore perhaps properly called a ‘codicil’, it was in reality, as the trial court found, a testamentary writing complete on its face, dispositive of the entire estate of the testatrix and therefore stands as a will in its own right.

In Estate of Benson, 62 Cal.App.2d 866, 145 P.2d 668 (hearing by Supreme Court denied), the testator had made a will dated January 17, 1938, and thereafter on December 27, 1940, executed another instrument saying: ‘I, N. Benson * * * make this codicil to my will dated on or about January 17, 1938 * * * I give all of my estate, share and share alike to Hartha, Tage, Edith, and Erik who are the living children of my deceased sister * * *.’ The question raised on appeal was whether the will to which the ‘codicil’ related was in existence at the time of the testator's death. The court stated on page 870, 145 P.2d on page 670:

‘* * * It is however not necessary in the present proceeding to determine whether the original will was known to be last in the possession of the testator, or whether the evidence supports the validity of that will as a lost or destroyed instrument, for the reason that it was superseded by the subsequent will dated December 27, 1940, which is in every respect a duly executed, valid will disposing of all of the property belonging to the testator. In re Estate of Shute, 55 Cal.App.2d 573, 131 P.2d 54. It therefore becomes immaterial whether the original will was affirmatively revoked. It was nevertheless void.’

The next question is whether, as contended by appellant Andrew Cuneo, the writing of October 15, 1956, when admitted to probate as the single testamentary instrument now in effect, must—since it is silent as to four of the testatrix' six children—be treated as a will which places them in the status of pretermitted heirs. Pretermission is a question of statutory interpretation. Probate Code, section 90 which we have quoted above requires pretermission unless intent to omit children ‘appears from the will’, and this has been construed to prohibit extrinsic evidence to prove the intent. (53 Cal.Jur.2d sec. 224, p. 481, note 10 and cases cited.) But the question of pretermission is a question of intent. And such intent is to be determined as of the time when the writing is made. (Estate of Matthews, 176 Cal. 576, 169 p. 233.) When the 1956 instrument was originally made it was a codicil relating to a will which, although not identified by date, was otherwise shown to be the 1954 will. This will was then in existence. It mentioned all of the children of the testatrix. The making of the codicil served to republish the will as modified by the codicil. (Prob.Code, sec. 25.) If intention to omit the children appears from the will and codicil construed together as a unit it is sufficient to exclude the children from the benefits of the pretermitted heir statute. (53 Cal.Jur.2d, sec. 215, p. 473, citing Payne v. Payne, 18 Cal. 291.) Payne was a case where the children were mentioned in the codicil and not in the original will, but we think that mention of the children in the will and not in the codicil will have the same effect. Presumptively, the testatrix, when she draws the codicil, either reads the will, or is familiar with all of its terms, and she makes her additions thereto, or changes therein, with the provisions relating to all the children in mind. They are not at that time forgotten. And the fact that by later revocation the original will ceases to be effective does not change the result. The later revocation does not relate to, and therefore cannot alter, the original intention.

As a codicil to the 1954 will, the effect of the 1956 holographic instrument at the time of its execution was to supersede the 1954 will only to the extent inconsistent therewith, no more. (95 C.J.S.Wills § 275, p. 56, ‘Partial Revocation’; Prob.Code, sec. 72, second sentence.) Upon execution of the 1956 document, the provisions of the 1954 will devising a remainder interest to all her children remained in effect. The continuation of the remainder interest was entirely consistent with Mrs. Cuneo's 1956 intention because in the codicil she said, ‘while they (Clara and Julia) live nobody will be able to disturb them,’ thus indicative that Clara and Julia's interests were then intended to be for life only. Since the other children were continued as remaindermen, there was no pretermission. Revocation of the 1954 will at some later time before her death did not reanimate pretermission.

It may be paradoxical to state that a written instrument can be deemed both a ‘codicil’ and a ‘will’—treating it as a codicil when construing against pretermission of heirs, but as a separate will to take it out of the rule that revocation of a will revokes the codicil to which it relates. If so, it is a paradox and not an anomaly. It is a matter of timing. In searching for a testator's intent on the subject of remembrance or forgetfulness of his children we look to his intent at the time the instrument was drawn. In searching for his intent as to revocation, we look to his intent at the time the possible revocation took place. Here pretermission is a problem of Mrs. Cuneo's 1956 intention; revocation a problem of her 1957 intention. There is no rule which says that when a testator has left two correlated writings, one denominated a will and the other a codicil thereto, the latter being dispositive of the entire estate so that it may stand alone, he must, when the former is revoked, reaffirm an intent to omit children unmentioned in the latter instrument, absent which mention the estate is relegated to intestacy.

It is conceded by all parties that substantial evidence supports the trial court's finding that the 1954 will was revoked. Here we need not review the cases construing Probate Code, section 350,4 nor study the ‘sufficiency of proof’ cases relating to revocation of lost and destroyed wills. (See e. g., the majority and dissenting opinions in Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689.) The evidence in the case at bench shows that the testatrix recovered the will from De Paoli, the person named therein as executor, that she did so declaring that the provisions of the will were not what she wanted and that she intended to burn the will. The striking out of all identifying references to the 1954 will in the 1956 ‘codicil’ and the fact that the will was not found among her effects at her death, although the 1951 will and 1956 ‘codicil’ were, are further items of evidence justifying the trial court's findings.

Appellant De Paoli contends, however, that the doctrine of dependent relative revocation applies to cancel out the revocation of the 1954 will. Exposition of this doctrine as adopted and applied in California is set forth in the opinion (per Mr. Justice Traynor) in Estate of Kaufman, 25 Cal.2d 854, 155 P.2d 831. In that case the testator had executed two wills, the provisions of which were closely similar except that the later will named a different executor. In both, a church was named as residuary legatee. The later will purported to revoke all former wills. It was executed less than 30 days prior to the death of the decedent. Standing alone, the charitable gift would have failed under Probate Code, section 41. The Supreme Court, holding that the first will should be admitted to probate, stated:

‘Under the doctrine of dependent relative revocation, an earlier will, revoked only to give effect to a later one on the supposition that the later one will become effective, remains in effect to the extent that the latter proves ineffective. [Citing cases] The doctrine is designed to carry out the probable intention of the testator when there is no reason to suppose that he intended to revoke his earlier will if the later will became inoperative. [Citing cases]’

And the court states on page 860, 155 P.2d on page 834:

‘* * * When a testator repeats the same dispositive plan in a new will, revocation of the old one by the new is deemed inseparably related to and dependent upon the legal effectiveness of the new. [Citing cases]’

Appellant De Paoli relies upon Estate of Kaufman. Its rules, however, are inapplicable to restore the 1954 will under the facts of this case, first, because, as we have shown the 1956 ‘codicil’ (now the later will) can be probated and given effect without destroying the testatrix' intent; and, secondly, because the provisions of the two wills are quite dissimilar and the dispositive provisions of the 1954 will depart from the consistent and continuous testamentary plan evidenced by the wills of 1943, 1951 and 1956. And it will be remembered, the testatrix emphatically stated that the provisions of the 1954 will were not what she wanted.

In passing it may also be noted that restoration of the 1954 will, even were it to occur, would not have the effect of restoring De Paoli as executor. His brief concedes, and correctly, that restoration of the 1954 will would only have the effect of restoring those provisions which are not in conflict with the 1956 ‘codicil.’

The latter document, however, provides: ‘Once I die my daughter Clara to take my place and she will act in my stead as if it were I.’ It also directed ‘Clara will be the manager.’ This, in a holographic will drawn by an unlettered layman, is sufficient to designate Clara as her executrix. (Prob.Code, sec. 402; Estate of Henderson, 196 Cal. 623, 639, 238 P. 938; Estate of Ringot, 124 Cal. 45, 56 P. 781; Atkinson on Wills [Hornbook series] pp. 602, 603.)

It cannot be successfully contended here that the acts of the testatrix in striking out portions of the 1956 ‘codicil’ prevented its effectiveness as a will. The only purpose of the deletions was to show that the 1954 will was no longer in the possession of De Paoli and also (possibly) to indicate it had been destroyed. The will was holographic and it is settled that cancellations, modifications, and interlineations in a holographic will made by the testator become a part thereof and do not render it invalid. (Estate of Finkler, 3 Cal.2d 584, 600, 46 P.2d 149.)

Appellant Clara Mondani contends that decedent in 1957 intended to restore the 1951 will. The acts she points to in support of this contention are these: the revocation and destruction of the 1954 will; the striking out of all references in the 1956 writing identifying the ‘will’ referred to therein as the 1954 will, while leaving other reference to a former will (to which the 1956 document was to be added); the retention of the 1951 will, together with the 1956 will among her valuable papers.

Since the 1951 will was revoked by the revocation clause of the 1954 will, this contention could only be supported by establishing either a revival of the 1951 will or that its revocation was under a mistake which the doctrine of dependent relative revocation could erase.

Under the conclusions we have reached it is unnecessary to struggle with these problems of revival and restoration. Since the 1956 writing is alive as a will and its effect as a clear expression of the testatrix' intent cannot be defeated by the pretermission of heirs, revival of the 1951 will would be idle and useless. If revived, its provisions would be subject to the provisions of the 1956 instrument. And these provisions do not merely modify. They dispose of the entire estate—to Julia and to Clara—and name Clara as executrix, which is just what the testatrix over the years, by repeated expressions of intent, showed she wanted.

The judgment is modified to provide for the appointment of Clara Mondani as executrix instead of as administratrix with the will annexed. As so modified, the judgment is affirmed. Clara Mondani to recover her costs.

FOOTNOTES

1.  This litigation commenced when one of decedent's daughters, Sarah Carboni, petitioned for Letters of Administration, alleging decedent had died intestate. Two days later, Clara Mondani filed a holographic will dated January 20, 1951, and petitioned for probate. Following this, Andrew Cuneo filed a contest of this will before probate. The Clara Mondani filed an instrument dated October 15, 1956, alleged to be a codicil to the will of 1951; she petitioned for the probate of the two instruments. As contest of these wills was then filed by Andrew. Next Angelo De Paoli petitioned as executor for probate of a lost or destroyed will dated May 13, 1954, alleging the 1956 instrument mentioned above to be a codicil. He also opposed probate of the other wills. Andrew filed opposition to the probate of the later will and codicil.

2.  To reach the conclusion that the 1956 ‘codicil’ standing alone disposed of all the property of the testatrix the court must have concluded that the portion thereof (unpunctuated) reading: ‘she and Clara will be the owners of everything I own while they live nobody will be able to disturb them’ should properly be construed to mean: ‘She and Clara will be the owners of everything I own. While they live nobody will be able to disturb them.’ Substantial evidence supports this construction of the testatrix' intent.

3.  Probate Code, section 90 provides, in part: ‘When a testator omits to provide in his will for any of his children, or for the issue of any deceased child * * * unless it appears from the will that such omission was intentional, such child or such issue succeeds to the same share in the estate of the testator as if he had died intestate.’

4.  Probate Code, section 350 provides in part: ‘No will shall be proven as a lost or destroyed will unless proved to have been in existence at the time of the death of the testator * * *.’

PIERCE, Presiding Justice.

FRIEDMAN and SCHOTTKY, JJ., concur.