McQuarrie v. Kuttler

KINCAID, J. pro tern., * —I dissent.

I cannot agree that we are compelled to conclude that Mrs. Kuttler intended the document in question to operate as her will over the contrary finding of the trial court.

Appellants assume and the majority opinion seems to hold *347 that because no conflicting testimony was introduced by respondents the trial court must accept appellants’ testimony at the value placed upon it by appellants, and if the trial court did not do so it was “disregarding” that evidence. Such is not necessarily the case. In evaluating appellants’ testimony the trial court was entitled to, and did, consider the manner in which the witnesses testified, the character of their testimony and their motives, and to weigh the testimony against words in the document in question, and other facts in the record. The fact that there was no conflicting testimony introduced by respondents did not prevent the trial court from disbelieving part or all of appellants’ testimony. (Code Civ. Proc., §1847; Huth v. Katz (1947), 30 Cal.2d 605, 608-609 [ 184 P.2d 521 ]; Odenthal v. Lee (1952), 113 Cal.App.2d 666, 669 [ 248 P.2d 937 ].)

Where such testimony was susceptible of different inferences, the trial court was entitled to draw the inference it thought applicable and, unless clearly arbitrary, such inference so drawn by the trier of fact is binding on the appellate court. (Juchert v. California Water Service Co. (1940), 16 Cal.2d 500, 508 [ 106 P.2d 886 ].)

While no particular words are necessary to show testamentary intent it is well established that before an instrument is entitled to be admitted to probate, excepting as hereinafter noted, it must satisfactorily appear from the instrument offered as the last will and testament that the decedent intended, by the very paper itself, to make a disposition of his property after his death in favor of the party claiming thereunder. (Estate of Wunderle, 30 Cal.2d 274, 280, 281 [ 181 P.2d 874 ].) The exception to this rule is that the mere nomination of an executor, without making disposition of the estate by giving any legacy or devising any part of the property, constitutes a will that, if it otherwise qualifies, is entitled to be admitted to probate. “It may often occur that, subject to the payment of his just debts, a testator is quite willing that his property shall be succeeded to as provided by law, while the selection of the minister through whom the settlement is to be made and the distribution is to be had is not only a matter of deep interest to him, but of vital interest to the estate; and as the law accords to him the privilege of making the selection of his executor, it must be upheld when duly made” (In re Hickman, 101 Cal. 609, 613 [ 36 P. 118 ]). (See Estate of Selditch, 91 Cal.App.2d 62, 67 [ 204 P.2d 364 ].)

*348 A document may be entirely dated, written and signed by a person and yet not be his holographic will. Even though an instrument is intended to be effective upon the death of the author thereof, if on its face it disposes of no property and nominates no executor, it is not testamentary in character and is not entitled to be admitted to probate. (Estate of Meade, 118 Cal. 428, 430, 431 [ 50 P. 541 , 62 Am.St.Rep. 244 ].)

It is also well settled that in order for an heir to be disinherited, the testator must leave a will which not only evidences an intent to disinherit but which also makes a valid disposition of his property. (Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 207 [ 92 P. 184 ]; Estate of Heney, 66 Cal.App.2d 867, 869 [ 153 P.2d 427 ]; Estate of Dunn, 120 Cal.2d 294 , 295 [ 260 P.2d 964 ].)

An analysis of the document in question discloses that it is entirely written, dated and signed by the decedent and is addressed: “To whom it may concern:” This heading is not necessarily inconsistent with a proper form of will if testamentary provisions follow. The document then reads: “If at any time I should pass on before I have a recorded will this is to certify that I do not want Mike Kuttler or Vera Kuttler, my deceased sons’ wives to have one thing or one cent of what I have: nor the children Joan, Bill or Nancy Ann as I never see them so I enjoy no pleasure from them.” This paragraph is clearly intended to disinherit the persons named and might be effective for this purpose if the decedent later in the document makes a valid disposition of her property.

Then follows: “Notify Earl Hayter or my sister Bertha McQuarrie Do. 7-7821—for them to dispose of my belongings as they see fit. Signed Mrs. Ethel May Kuttler 2/16/56.”

The first paragraph wherein the decedent indicates her desire to disinherit certain of her heirs is specific, positive and inclusive. She recognized the meaning of the words “to have” to indicate the taking of possession by way of ownership when she declared she did not want these persons “to have one thing or one cent of what I have.” In contrast the last paragraph is unclear as to meaning and is not inclusive. There is no word or indication of gift, bequest, devise or valid disposition to Hayter, McQuarrie or anyone. Instead of the inclusive words “one thing or one cent of what I have” the decedent uses the term “belongings.” The nebulous “To whom it may concern . . . Notify Earl Hayter or my sister Bertha McQuarrie . . . —for them to dispose of my belongings as they see fit,” is lacking in dispositive verbiage.

*349 If the decedent had finally made up her mind how she wanted her property to go and had decided to give it to MeQuarrie and Hayter by the instrument in question, intending it to be a will, decedent would undoubtedly, in the light of her language in the first paragraph, have said that she wanted Hayter and MeQuarrie to have everything she had, or all her property, or words importing a gift or bequest to them.

The paragraph requesting notification to Hayter or MeQuarrie to dispose of her belongings as they see fit may have been an afterthought prompted by a desire to have someone transfer her personal effects, jewelry and removable objects about the house to a safe place immediately upon her death to keep them from falling into the hands of the daughters-in-law until an administrator had been appointed to take them over. Such an inference gives a logical explanation for the presence of MeQuarrie’s telephone number in the request to notify. Hayter lived next door to decedent. The presence of the telephone number indicates urgency. It is inseparably tied in with notification to dispose of belongings. There could be no urgency if decedent meant by that paragraph to give the “belongings” to Hayter or MeQuarrie, or for them to give them to anyone else. But urgency could be called for if she used the word “dispose” in the sense of “transfer” or “remove” until an administrator had been appointed. That urgency might relate only to personal effects because real estate would already be safe, thus explaining the use of the word ‘ ‘ belongings. ’ ’

When the language used is coupled with the testimony that just eight days before she wrote the instrument she had not yet decided how she wanted her property to go, the most logical explanation for the instrument seems to be that it was intended only to exclude the daughters-in-law and the children from a share in her estate if decedent died before she made a will; that otherwise she was content to have her property go by intestacy. In furtherance of that interpretation the evidence showed that decedent had two brothers besides her sister, Bertha MeQuarrie. There is nothing in the record to indicate that decedent had any preference for her sister Bertha over those two brothers; to suggest any reason why MeQuarrie should'have been favored over those equally natural objects of decedent’s bounty, or to suggest that decedent was contemplating excluding those brothers from a share in her estate.

*350 Under those circumstances the inference is logical that until she had a “recorded” will decedent was content to let her estate pass hy intestate succession, after excluding the daughters-in-law and children from any share in her estate.

As far as respondent grandchildren are concerned, that purpose was, of course, frustrated by the rule of law heretofore stated that, in order for an heir to be disinherited a will must be left which additionally makes a valid disposition of the property of the testator.

The words in the document before us and which appellants contend are dispositive in meaning and effect may be compared to some extent with those in a holographic will in Estate of Maloney, 27 Cal.App.2d 332 [ 80 P.2d 998 ], There the decedent made specific bequests and concluded the will as follows (p. 333): “I wish for Mrs. Sarah Collins to doe wat she know I like done if any is left. ’ ’ The will was admitted to probate but upon distribution the probate court held there was an intestacy as to the residue. Sarah Collins appealed claiming that the above quoted language made a gift of the residue to her. The court upheld the decision of the probate court that a trust was intended but that it failed for uncertainty. The appellant cited rules to the effect that an interpretation which favors testacy is preferred over one which results in intestacy, and that the intention of the testator must be given effect as far as possible and contended that in view of those rules the language of the residuary clause quoted was effective to give her the residue. This contention was answered by the court as follows (p. 336) : “We are of the opinion, however, that to so hold would be to enter the field of conjecture and amount to a rewriting of the testatrix’s will; and it is well established that neither indulgence in speculation nor conjecture as to what a testatrix’s intention was affords proper basis for a decree of distribution (citation) ; nor is a court permitted to adopt a construction founded on conjecture or to supply an omission by rewriting a will in order to avoid a conclusion of partial intestacy. (Citation.) ”

The rule of law that favors testacy as against intestacy only operates when the existence of testamentary intent has already been ascertained and the subject matter of the doubt is one of construction. “Where there is a doubt as to the existence of the animus testandi the rule in favor of testacy is not applicable.” (Estate of Anthony, 21 Cal.App. 157, 161 [ 131 P. 96 ]; Estate of Blain, 140 Cal.App.2d 917, 922-923 [ 295 P.2d 898 ].)

*351 “When words which may be construed as testamentary are used in an informal document such as a letter, and it is not entirely clear that the writer intends thereby to control the disposition of his property at his death, the courts have been very liberal in admitting extrinsic evidence to show intent.” (Estate of Golder, 31 Cal.2d 848, 850 [ 193 P.2d 465 ]; see Estate of Sargavak, 35 Cal.2d 93, 96, 97 [ 216 P.2d 850 , 21 A.L.R.2d 307 ].) Extrinsic evidence was here received by the court for the purpose of ascertaining the intent with which the instrument was executed. That this evidence, in addition to the terms of the instrument itself, was fully considered is conclusively indicated by the written findings of fact and conclusions of law of the court wherein it is stated: “Documentary and oral evidence was introduced . . . and the court having duly considered the evidence . . . and having ordered a judgment in favor of contestants, now makes the following Findings ...” Here there is a specific finding after evidence taken of a lack of testamentary intent and from that, as well as the terms of the document in question, I feel that we are not justified in assuming the existence of such an intent.

Nor do I agree that by the use of the words contained in the last paragraph of the document a power of appointment was conferred upon McQuarrie and Hayter with respect to her “belongings” or at all. There are no words of conferral of a power of appointment. Nor are there any words of gift or similar import to any possible appointee under any power. The language does not transfer title to anything to appellants. It does not say they may keep or dispose. It does not even say they “may” dispose. Appellants apparently imply such words from the direction to “dispose.”

The instrument is not even addressed to appellants, but is addressed to “whom it may concern” as a direction to “notify” Earl Hayter or Bertha McQuarrie for them to dispose of decedent’s “belongings” as they see fit.

The object to be searched for in interpreting an instrument is the intention of the writer of the instrument. Appellants assert that the intention was to give them the property absolutely. But if that be so, why didn’t the decedent say that? In the ordinary and normal course of events, a testator, if he wants to leave property to A and B, does not leave a writing addressed to “whom it may concern” directing that A or B be notified for them to “dispose” of the property as they see fit. The language of the instrument shows that the decedent had no difficulty in expressing herself in writing. And, as here *352 tofore pointed out, the tenor of the first paragraph indicates that had she intended to leave all her property to Bertha McQuarrie and Earl Hayter, she would have used language in the same vein, leaving “everything I have,” or words of similar import, to them. In the light of that uncertainty, the words of the Supreme Court of Alabama in a somewhat similar ease, Parrish v. Gamble, 234 Ala. 220 [ 174 So. 303 ], are of interest. The instrument in that case was as follows:

“Feb. 10,1934.

“My last Will and Testament:

“To my beloved Nephew Joseph Parrish, I give full authority to divide my small estate, as requested in a separate paper, not to be probated. He will give no bond, and be guided only by his unfailing good judgment, and unquestioned integrity.

‘ ‘ Grace B. Evans

“Dollie T willy ‘1 Carrie Sanders”

Since the instrument was headed as it was, unlike the one before us, there was no question as to the testamentary intent. The contention was made that the will clothed Joseph Parrish with an absolute power of disposition. In rejecting that contention the court said (pp. 306-307 [174 So.]): “We concur in the view of the trial court that this will, on its face, or with the aid of the documents mentioned, cannot be construed to vest an absolute power of disposition in Joseph Parrish, either to be performed as executor, or under a power apart from the office of executor; nor a power of appointment, carrying authority to name the beneficiaries among the heirs as a class, or to prescribe what share each shall take.

“Such powers, virtually substituting the donee of the power for the testator, in naming the objects of his bounty, or the shares each shall take, is not to be inferred except from clear and unequivocal language, or evidence admissible to make such intent clear. Pearce v. Pearce, 199 Ala. 491 -506 [ 74 So. 952 ], The will makes no disposition of the estate; it descended as in ease of intestacy.”

The Restatement of the Law of Property under the subject of “Powers of Appointment,” section 323, comment e, says:

“Occasionally a testator provides that certain property shall pass to his executors and adds ‘to be distributed by them as they deem advisable’ or ‘to be disposed of as they think will be in accordance with my wishes, ’ or some similar clause. Such a clause may have one of several legal effects. (1) If, as a *353 matter of construction, it is determined that the testator intended the executors to benefit personally from the gift, such a clause may be held (a) to be an outright gift to the executors, or (b) to create in the executors a general power of appointment presently exercisable. The former holding is rarely justified since it necessarily treats as surplusage the words of the will which provide for distribution and hence violates the canon of construction that all words of a will are to be given effect if possible. (2) If, as a matter of construction, it is determined that the testator did not intend the executors to benefit personally from the gift, such a clause is an attempted trust for indefinite beneficiaries and hence void (see Restatement of Trusts, § 122). Conceivably such a clause could be held to create a power to appoint the property to any persons other than the executors; but it is on the whole preferable to allow the property to pass as a part of the residue or by intestacy rather than to attempt to carry out a highly doubtful testamentary intent by any such unusual device (Emphasis added.)

It is highly doubtful that the instrument in question was intended to be testamentary in character. How much more uncertain as to intent then is this instrument as compared with the one in the Parrish ease where there was expressed testamentary intent, or the clauses mentioned in the Restatement of Property quotation where such clauses are assumed to be part of an admitted will.

Hayter contends that the document under consideration appoints appellants as executors. He argues that the last paragraph serves to name appellants as both beneficiaries and as executors by the exact same language.

The word “executor” does not appear in the instrument offered. Since no person is expressly named as executor, the question must be decided upon the evidence as a whole and on principles of law relating to the appointment of an executor according to the tenor of the instrument. As was said in Estate of Clary, 98 Cal.App.2d 524, 526 [ 220 P.2d 754 ] : “Whether a writing purporting to be the last will of a decedent has with sufficient clarity designated a specific person to act as executor of his will must be determined by familiar rules for the interpretation of such documents. A holographic will must be perused for the purpose of determining the intention of the testator. In order to ascertain such intention, the document must be read in view of the circumstances under *354 which it was written, the words must he given their ordinary grammatical sense and all parts of the writing must be considered in relation to one another. (Citation.)

“The appointment of an executor ‘according to tenor’ is not regarded with favor. While the decision of any case must be based upon its own facts, unless the court can conclude from the words of the testator that the latter intended for his devisee to take charge of the estate, collect its assets, pay its debts and perform the usual functions of an executor, it is error to appoint such devisee. . . . The foregoing rule is firmly established by the decisions of California and other jurisdictions.” (See also Estate of Dern, 114 Cal.App.2d 799, 800, 801 [ 251 P.2d 28 ].)

Appellants are not directed by the instrument in question to “take charge of the estate,” to “collect the assets of the estate,” or “liquidate indebtedness of the estate” or to “do what is necessary to distribute the estate.”

Indeed, the instrument is not even addressed to appellants but “To whom it may concern.” The word “notify” may properly be construed to infer that the decedent intended the instrument to be only instructions to her friends and not a testamentary appointment of them as her executors.

In a contested proceeding in probate the limitations imposed upon an appellate court’s review of the facts are the same as in any other civil case. In reviewing the evidence all conflicts must be resolved in favor of respondents, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. (Estate of Blain, supra, 140 Cal.App.2d 917, 920 [ 295 P.2d 898 ].) Viewed in this light, I feel that there is substantial evidence to support the trial court’s findings and I would therefore vote to affirm the judgment.

A petition for a rehearing was denied June 6, 1958. Kincaid, J. pro tern., * was of the opinion that the petition should be granted. Respondents’ petition for a hearing by the Supreme Court was denied July 9, 1958.

Assigned by Chairman of Judicial Council.

Assigned by Chairman of Judicial Council.