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IN RE: SCHNOOR'S ESTATE.* VOLKMANN et al. v. VINSON et al.
These are appeals by certain heirs who are next of kin of the decedent Emilie D. Schnoor from an order admitting to probate a purported will dated December 16, 1930, and from an order granting letters of administration with the will annexed to the respondent Albert E. Hill, the public administrator of Alameda county. On December 16, 1930, the decedent executed a holographic will in words and figures as follows:
“Alameda, Calif., Dec. 16, 1930
“I, Emilie D. Schnoor, a single woman, never having been married, over 21 years and being of sound and disposing mind and memory, and not acting under any duress, menace, fraud, or undue influence of any person whatever, do make and declare this my last Will and testament in following manner: that is to say
“1. I direct that my body be cremated and that no excessive amount be expended either in cremation or in funeral expenses.
“2. I give and bequeath to Evelyn Hunt Vinson all my real and personal property.
“3. Should any person or persons legally related to me seek to establish or assert any claim or claims to my Estate, or any part thereof, or should such person or persons attack or oppose, or seek to set aside this Will or impair, or invalidate or set aside any of its provisions, I hereby give, devise and bequeath to such person or persons the sum of One Dollar ($1.00), and no more, in lieu of any share, legacy, bequest, gift, or interest in my estate. This provision is made after mature deliberation, as my relatives have no legal claim against me or my Estate; furthermore, they all for a number of years, during sickness and in health practically ignored my existence and have been of no comfort, nor have they extended me any assistance whatever.
“I hereby nominate and appoint A. B. C. Dohrmann of the City of San Francisco, Calif., Executor of this my last will and testament to serve without Bonds, and I hereby revoke all former wills made by me.
“Emilie D. Schnoor.”
Some months later the decedent made a trip to Los Angeles. While down there, on October 20, 1932, she wrote the second will. So far as it is material to this case it provided:
“My Last Will
“I write this in case of an Accident, we never know. I want Evelyn Hunt Vinson and Miss Ada Boye of Hayes St S. F. to see that my last wishes are attended too. (Here follow several bequests.)
“Miss Ada Boye $100.00 everything else is for you to do as you please
“Emilie D Schnoor
“–I should have written this over
“–no time as I am leaving for home in half an hour
“Emilie D Schnoor
“sending this to myself in your care, so you can open it. I want you to”
Having done so she mailed it to herself in care of Mrs. Vinson at Alameda. The next day she arrived in Alameda. On arriving there the decedent showed to Mrs. Vinson the document dated October 20, 1932, and then tore it up. The torn pieces she put in an envelope, and in that form that document was placed among her belongings, where it and the will dated December 16, 1930, were found after her death. Mr. Johnson pasted the torn pieces together and filed both documents with the county clerk.
Mr. Dohrmann, named as executor in the first will, renounced his right to act as executor. The public administrator filed a petition asking that the first will be admitted to probate and that letters be issued to him with the will annexed. C. O. Schnoor, a brother of the decedent, and Margaret Volkmann, a sister, filed contests claiming the decedent died intestate. Evelyn H. Vinson filed answers to both contests. On the hearing evidence was introduced showing that the decedent owned properties in addition to those specifically mentioned in the document dated October 20, 1932, but the record does not show the value of the excess. The trial court granted the petitions of the public administrator. The brother and sister have appealed.
At this time the appellants contend that the document dated October 20, 1932, revoked the earlier one. Both sides agree that the document dated October 20, 1932, was revoked by the decedent animo revocandi.
The appellants earnestly contend that because the second will disposed of the entire estate therefore the later will ipso facto revoked the former. In re Iburg's Estate, 196 Cal. 333, 238 P. 74. Continuing they claim the decedent died intestate. The respondents reply that such result follows only when the second will disposes of the entire estate to persons other than those taking under the earlier will or when, considered from its four corners, it indicates a testamentary intent wholly inconsistent with that obtaining in the earlier will that it operates as a revocation of such earlier will. In re Bassett's Estate, 196 Cal. 576, 580, 238 P. 666. We think that distinction is well founded. Simmons v. Simmons, 26 Barb. (N. Y.) 68, is the only case in England or America which has been cited contrary to respondents' reply, and in our search we have found no others. But, although Simmons v. Simmons, supra, has been cited by text-writers as an authority, an examination discloses that the case was reversed. Simmons v. Simmons, 24 How. Prac. (N. Y.) 611. Furthermore, our statute (Probate Code, § 72) provides that when a second will does not contain a revocatory clause it does not revoke a prior will unless its provisions are “wholly inconsistent” with the provisions of the earlier will. Now in the instant case Mrs. Vinson was in effect, the residuary legatee under both wills. The only difference being as to the quantum of her bequest. Under the plain provisions of the statute it may not be said the decedent's wills were wholly inconsistent–they were only partly so. It follows that if the second will had not been destroyed both wills would have been admitted to probate. Probate Code, § 101. In re Toomey's Estate, 96 Mont. 489, 31 P. (2d) 729, a decision by the Supreme Court of Montana, is particularly applicable as the Montana statute on wills was taken from the California statutes. The decedent, Toomey, left two holographic wills. By the first he left all of his estate to Harrington. Later he wrote a letter to Harrington. It was testamentary in character. By that letter the decedent asked Harrington to pay $1,000 to each of two nephews of the decedent and “to keep the rest.” The trial court held the latter document did not revoke the former and it admitted both documents to probate as the will of the decedent. On page 732 of 31 P. (2d) the court said: “The court correctly held that the two instruments must be construed together in ascertaining the intention of the testator. In re Danford's Estate, 196 Cal. 339, 238 P. 76. The letter of April 18, 1932, if considered a will, would not revoke the former will, as it did not contain ‘an express revocation, or provisions wholly inconsistent with the terms of the former will’; the former will ‘remains effectual so far as consistent with the provisions of the subsequent will.’ Section 6998, Rev. Codes 1921.” We find no error in the record.
The orders appealed from are affirmed.
STURTEVANT, Justice.
We concur: NOURSE, P. J.; SPENCE, J.
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Docket No: Civ. 9806.
Decided: May 21, 1935
Court: District Court of Appeal, First District, Division 2, California.
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