IN RE: JANES' ESTATE. (1940)

This is an appeal by Iva A. Vroom, a legatee, from the order of the superior court denying the petition of Dorothy Janes Curtiss for the probate of the document alleged to be the will of Harry C. Janes. Dorothy Janes Curtiss is named as executrix in the will, and although she presented the will for probate, at the trial she took the position that decedent, who was her father, died intestate, and appellant took the position that the will in question was in fact the last will of decedent and that the petition for probate should be granted.

No findings of fact were filed by the trial court. In this the court erred. Issues of fact in probate proceedings must be determined by the court and appropriate findings respecting the issues must be filed. Prob.Code, sec. 1230; Estate of Clifford, 16 Cal.App.2d 123, 60 P.2d 302; Estate of Pendell, 216 Cal. 384, 14 P.2d 506.

The evidence presented to the trial court was not sufficient to sustain a finding upon which the order appealed from could be based. Harry C. Janes died on December 9, 1938, at the age of 66 years. During the last three days before his death he had been ill at the home of appellant, who was attending him professionally as a chiropractor. The evening before his death decedent requested appellant to go to his apartment and get his suitcase. He told appellant that she would find instructions in the suitcase and that he had left her $5,000 and two automobiles. At about the same time decedent told the witness Martha Gunter that he had left $5,000 to appellant. Mr. Janes died at about 2:15 a.m. Dr. Vroom telephoned to Clarence McKinley, an undertaker, who arrived at about 4 o'clock a.m. Dr. Vroom had opened the suitcase and found therein an insurance policy, attached to which was a draft for $250 to be filled out and sent to his daughter, Dorothy Janes Curtiss; also three pieces of paper, one containing a request that decedent's body should not go to the morgue, another giving written authority for appellant to take charge of his personal effects, and another containing written instructions concerning his funeral. She also found in the suitcase the piece of “white paper” hereinafter mentioned.

The holographic will which was denied probate by the order from which the appeal is taken was found by appellant in the evening of the same day when she again opened the suitcase. This will was entirely written, dated and signed by decedent. Appellant is therein given the sum of $5,000 and two automobiles. The residue of the estate is given to Dorothy Janes Curtiss, who is named as executrix. Attached to the will by a clip was a small piece of paper in the handwriting of decedent, but unsigned, reading as follows: “This is a copy of my last will, the original is in my safe deposit box.” The will bears the date of November 1, 1938. Testimony was presented showing that a search had been made in decedent's bank box and elsewhere and that no will could be found except the one offered for probate.

Respondent contends that the will offered for probate was only a copy and that the original had been destroyed by decedent for the purpose of revoking it. In support of this contention respondent cites the testimony of Clarence McKinley and Dr. Vroom. Mr. McKinley testified that on his arrival at Dr. Vroom's residence appellant exhibited to him a piece of white paper which was not signed; that “it was a piece of paper cut off”; that it “seemed to be about three-fourths of a paper”; that the “top was cut off”; that Dr. Vroom referred to the paper as a will but that he told her that it was not a will since it was not signed; that he did not remember anything that was on the paper except that decedent's daughter, Dorothy Janes Curtiss, was mentioned. The witness further testified: “It seems to me it was written on both sides, but I am not sure. It was a piece of paper cut off, written in a hurry or something. It seemed to be about three-quarters of a paper, I could tell the top was cut off, you know, like you cut off part of a letter at the top when you cut something off in a hurry.”

Dr. Vroom testified that she opened the suitcase about one hour and a half after the death of Mr. Janes; that she found a piece of paper that looked like it might have been a will. That it was “cut off at the bottom and was not signed or dated”; that the writing was the writing of decedent; that she did not remember what was in the writing but that there was something about decedent's daughter Dorothy; that “there was nothing mentioned of any property to be given anybody in it”; that she showed the paper to Mr. McKinley who told her that it was “no good” because it wasn't even signed; that she did not remember seeing it again. Appellant had another conversation with Mr. McKinley in Mr. McKinley's office later in the same day. She testified that at that time she did not have a conversation with Mr. McKinley about decedent's will because she “was sure the will was in his safe deposit box and had no idea there was a copy in his suitcase.”

The document offered for probate purports to be the last will of decedent. It is complete and nothing is contained in the will itself to indicate that it is a copy of another document. The unsigned and undated slip of paper is clearly not a part of the will. An extraneous document cannot affect a will unless the document is in existence when the will is written and is so clearly identified in the will itself as to become a part of it. Garde v. Goldsmith, 204 Cal. 166, 267 P. 104.

Respondent relies upon section 76 of the Probate Code, wherein it is provided that a will executed in duplicate is revoked if one of the duplicates is obliterated or destroyed by the testator for the purpose of revocation. To establish that the will was destroyed in the manner mentioned in the code section respondent calls to her aid the presumption that a will last seen and known to have been in the possession of a testator, which cannot be found after his death, has been destroyed by him with the intent of revoking it. Estate of Sweetman, 185 Cal. 27, 195 P. 918. In order to invoke this presumption respondent must establish that the will was seen and known to have been in the possession of decedent before his death. There is no proof in the record that anyone ever saw the purported “original” will of which the document offered for probate is claimed to be a copy. No proof was offered to show that anyone knew such a will to be in the possession of decedent. The proof presented to establish the existence of the purported “original” will does not contain the elements necessary to form a basis for a finding that such a will was executed. Neither Dr. Vroom nor Mr. McKinley testified that the “white paper” found by Dr. Vroom in the suitcase was a will. Mr. McKinley could only remember that the instrument was unsigned and that it mentioned decedent's daughter. Dr. Vroom testified that the instrument did not dispose of any property. The most that can be said is that the evidence affords ground for surmise and conjecture. Findings may not be based on such a foundation. Clapp's P. Station v. I.A.C., 51 Cal.App. 624, 627, 197 P. 369. Clearly, if there had been no proof whatever of the existence of the will offered for probate, the court could not properly find that the “white paper” mentioned by the witnesses was the last will of decedent. Nor could it properly make a finding as to its terms.

The order is reversed, appellant to recover costs on appeal from respondent.

WOOD, Justice.

We concur: MOORE, P.J.; McCOMB, J.