Estate of Sack

[792]

NOUESE, P. J.

This is an appeal from an order denying petition for probate of a letter offered as a codicil to a will. The trial court held that the letter was not written with testamentary intent and was not intended as a codicil to the will.

Edwin L. Sack died December 14, 1945, leaving a holographic will dated June 16, 1931, in which he left two rings to a friend, Dr. Eeiter, and the rest of his estate to his sister, Ida Sack, “without any reservation,” and designated the San Francisco Bank as executor and administrator. Upon petition of the bank this will was admitted to probate.

Thereafter the bank filed with the clerk of the superior court the letter of June 25, 1931, the one sought to be admitted to probate. This letter in decedent’s handwriting, written nine days after the will, was addressed to his sister “Dear Ida,” was found in the safe deposit box with the will but in a separate envelope marked “Property of Ida Sack.” Decedent wrote:1 ‘ This is simply a letter of instructions which I will ask you to follow in regard to the disposition of my estate which, according to the will which is to be probated, is left almost in its entirety to you, for obvious reasons. This is not exactly what I want but, in order not to complicate the will, I have written it as I have.” He then goes on to point out that the insurance made out to his sister would be hers as well as the money in their joint savings accounts and that he also wanted her- to have his jewelry, stamps, and personal effects. He then states “To Martha and Henry (appellants herein) $1000.00 in cash together.” He requests Ida to collect $5,044 due from his brother, writing, “He is to pay this note to yon and the money is to be disposed of along with the savings accounts I have in my name only as follows:

‘Eleanore is to receive one fourth 1

Virginia is to receive one fourth J- at 18 years of age

Marian is to receive one half j .’ ”

Marian Sack is the daughter and sole heir at law of decedent. The letter contained instructions to Ida “to become acquainted with her (Marian) so that you may be judge of her character, principle and attitude. . . . you judge her to be the right kind of girl. . . . you will arrange so that such education is paid for but only to the amount of one half of the total she gets at 18 years of age. Then at 18 she is to have the balance in her own name. If you judge against her Eleanore & Virginia are to get one half each of her share.” At the time the letter was written Marian was about 6 years old, but at the time of the testator’s death over 20.