Estate of Ottoveggio

California Court of Appeal May 19, 1944 No. Civ. 12613Published

Before: Peters

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Holding. The court held that the trial court correctly interpreted the holographic will to devise the real property described in clause tenth to Dr. Pasquale Scelso, rejecting the argument that the testatrix intended to leave the property undisposed of due to a mental lapse.

Issues

Whether the testatrix intended to devise real property to Dr. Pasquale Scelso in clause tenth of her holographic will.
Whether the capitalization of the word 'All' at the beginning of the third page of the will created a separate, incomplete bequest or was merely a stylistic choice within a single clause.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The trial court determined that, properly interpreted, by clause tenth the testatrix had devised the real property to Dr. Scelso.”

“That sentence, although somewhat awkwardly phrased, (but no more awkwardly than other clauses), clearly designated Dr. Scelso as the legatee of the real property as well as of the securities.”

PETERS, P. J.

Vincenza Ottoveggio, a childless widow, died in Boston, Massachusetts, in October, 1941. Her holographic will, written in Italian and dated March 4, 1936, has been admitted to probate in Santa Clara County, her domicile at the time of her death. By this will the testatrix made several general and specific legacies. The estate is insufficient to pay the general legacies. The general legatees, who are brothers and sisters of the deceased, and residents of Italy, through the office of the Alien Property Custodian, maintained that the deceased did not effectively dispose of certain real property described in clause “Tenth” of the will and that, therefore, such real property was available to pay the general legacies. Dr. Pasquale Scelso contended that the property in question was devised to him. The executor petitioned the probate court for instructions. The only extrinsic evidence introduced at all relevant to the issue here involved was that after the will was executed, and shortly before her death, decedent made a gift to Dr. Scelso of the securities referred to in the tenth clause of the will. The trial court determined that, properly interpreted, by clause tenth the testatrix had devised the real property to Dr. Scelso. From this order the general legatees appeal. The record consists of an agreed statement under rule 6 of the Rules on Appeal. Another portion of the will has already been before this court for interpretation.

(Estate of Ottoveggio,

62 Cal.App.2d 880 [145 P.2d 700].)

The will, as already pointed out, is in the handwriting of the deceased and is written in Italian. It is almost completely devoid of punctuation. Clauses fourth to eighth contain the general bequests to appellants. They read as follows :

“Fourth I give and leave the sum of Two Thousand Dollars to Pietro Sciascia my brother

[390]

Fifth I give and leave the sum of Two Thousand Dollars to my brother Salvatore Sciascia

Sixth I give and leave One Thousand Dollars to my brother Vito Sciascia

Seventh I give and leave Two Thousand Dollars to my sister Antonia Sciascia

Estate of Ottoveggio

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PETERS, P. J.

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