Volkmann v. Vinson

CONREY, J.

On the 16th day of December, 1930, the decedent Emilie D. Schnoor, executed a holographic will wherein she gave and bequeathed to Evelyn H. Vinson “all my real and personal property”. On the 20th day of October, 1932,

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she executed a second holographic testamentary document, which we may call the second will, and which contained several bequests of personal property and gave the residue again to Mrs. Vinson. The estate included property in addition to that disposed of by the specific gifts made in the second will. The second will did not contain any express revocation of the first will. Shortly after October 20, 1932, the testatrix destroyed said second will.

After the death of the testatrix the first will was offered for probate, and contests were instituted by a sister and by the brother of decedent. After trial the court made an order admitting to probate said will of December 16, 1930, and an order granting to the public administrator letters of administration with the will annexed. From these orders the contestants have prosecuted this appeal.

It is an admitted fact that the second document was destroyed with intent to revoke the same. Appellants contend that both wills were revoked and that the decedent died intestate. If the terms of the second will were such that it constituted a revocation of the first will, necessarily we would conclude that the revocation of the second will did not revive the first. Second 75 of the Probate Code reads as follows: “If, after making a will, the testator makes a second will, the destruction or other revocation of the second will does not revive the first will, unless it appears by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction or other revocation, the first will is duly republished.” We have no evidence of an intention to revive the first will, if, in fact, it had been revoked. The real question is: Did the execution of the second will itself constitute a revocation of the first ?

Section 72 of the Probate Code reads as follows: “A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the prior will. In other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will; but the mere naming of an executor in the prior will need not be given effect by the court when the subsequent will is otherwise wholly inconsistent with the terms of the prior will, the intention of the testator in this respect being left to the determination of the court.” Since there was no express revocation, we have only to determine whether or