Estate of Wiemer

California Court of Appeal Oct 24, 1962 No. Civ. No. 7030Published

Before: Coughlin

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Holding. Where a later holographic will is independently sufficient to dispose of an entire estate and contains provisions inconsistent with a prior formal will, the later instrument controls the disposition of the estate.

Issues

Whether a holographic will and a prior formal will should be construed together as a single instrument or if the later instrument controls the disposition of the estate.
Whether the residuary clause of the holographic will refers only to the residue after its own specific bequests or to the residue after all bequests in both instruments.

Disposition. reversed

Quotations verified verbatim against the opinion

“Where two instruments are admitted to probate as the last will of a decedent and the later thereof, as such, fully and independently disposes of his entire property in a manner inconsistent with the dispositive provisions of his earlier declaration”

“the provisions of the later instrument control the disposition of his estate.”

209 Cal.App.2d 7 (1962) Estate of ESTELLA M. WIEMER, Deceased. THOMAS LEE, a Minor, etc., et al., Objectors and Appellants,

ESTRELLITA ARMSTRONG, as Coexecutrix, etc., et al., Petitioners and Respondents.

Civ. No. 7030. California Court of Appeals. Fourth Dist.

Oct. 24, 1962. A. G. Ritter for Appellants.

Gordon, Knapp, Gill & Hibbert and B. Richard Marsh for Respondent Maude Smith Gill.

COUGHLIN, J.

The issues on this appeal involve the construction of two instruments admitted to probate as the last will, and a codicil thereto, of Estella M. Wiemer, deceased.

Mrs. Wiemer executed a formal will on December 8, 1953, by which she disposed of her entire estate; devised and bequeathed specific property to her two sisters, her brother, a foster granddaughter, a foster grandson, and a foster son-in-law, or to their heirs in the event they predeceased the testatrix; left the residue of her estate to the foster granddaughter [9] and foster grandson; and named the latter executors of her will. In this will the testatrix declared that she had no natural children, but that she had raised Genevieve Lee for whom she had the same affection as a natural daughter. The persons referred to herein as the foster son-in-law, foster granddaughter, and foster grandson are the husband and children respectively of Genevieve Lee. The foster grandson had two children who were not named in the formal will. After its execution, the foster son-in-law, the brother, and a sister died. On June 22, 1959, which was approximately five and one- half years after execution of the formal will, Mrs. Wiemer wrote the following:

"Monday June 22 - 59"

"Just came from Dr. Stititus office Heart Examined. Found it irregular due to breathing spell I was having. They took a Cardigraf Dont know what it shows?"

Will

If I should die suddenly I want Maud to have 10,000 Tommy -- Lindy the rest of my property, $5,0000 [fn. 1] for Orlan Kiser Bury near Frank -- Get Gertrude to take care of services and Bill & Janise with my own family Alfred -- Estrellita

Estate of Wiemer

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COUGHLIN, J.

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