Estate of Spies

MOORE, P. J.

Albert P. Spies executed his last will and testament March 7, 1930. It left testator’s entire estate to his wife. She predeceased him on December 10, 1944, and the will contained no appropriate provision for the disposal of his estate to his survivors. On January 12, 1945, he wrote,

[89]

dated and signed with his own hand the following instrument;

“Jan. 12—45

Mr. James Yates Secy 663 B of L F & E

In case of my death, before my Brotherhood Policy is assign in change of beneficiary it is my wish, that I bequeat $2000.00 of this $4000.00 policy to Patty Lou Smith of 1047 E. Wood St. Decatur, 111. and Apt’s 419 & 421 of Glen Donald’s Apt’s at Los Angeles, Calif.

Albert P. Spies Mrs. W. M. McKay (Witness thereto) ’ ’

The addressee of the letter is Mr. James Yates, secretary of Lodge 663 of the Brotherhood of Locomotive Firemen and Enginemen. The letter was not delivered but was found in testator’s effects after his death. The witness thereto, Mrs. W. M. McKay, was a neighbor and a practical nurse who attended testator in his last illness and with whom he frequently discussed his affairs. Patty Lou Smith is the daughter of a sister of decedent’s wife. Eight brothers and sisters survived decedent, seven of whom are appellants herein and one is administratrix-with-will-annexed. Mr. Spies was in poor health at the time of the demise of his wife and he became progressively worse until his death on February 8, 1945.

At a hearing and trial without a jury the superior court found that the holographic instrument of January 12, 1945, was duly executed with testamentary intent and admitted it to probate as a codicil to testator’s last will and testament.

Appellants’ sole contention on appeal is that the instrument, viewed either alone or in the light of the circumstances of its execution, does not evidence sufficient testamentary intent to warrant its admission to probate as a will or codicil.

It is axiomatic that the intent of a testator so far as is possible should control in the interpretation of his will. This is accordingly the basic rule of construction to which all others must yield. (Prob. Code, § 101;