Estate of Randall

BISHOP, J. pro tem.

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On this appeal by the grandniece of the decedent from a decree declaring that a certain fund should go to the residuary legatee and not to the appellant,

[86]

we are reversing the decree because we are convinced that the trial court erred in refusing to receive evidence, the object of which was to reveal what the testatrix meant by certain words she used in her will.

The facts essential to the plot are neither many nor complicated. The executor of the will filed a petition under section 1080 of the Probate Code praying that the court determine “those who are entitled to distribution of [the] sum of $5,568.09, listed as Item 1 in the inventory and appraisement on file herein.” The item referred to was: “Cash on deposit with Veterans Administration Hospital, San Fernando, California $5,568.09.” Two other items are listed under the heading of “Cash” along with that quoted. The field of those possibly entitled to receive this item 1 is strictly limited. It must go to one or the other of these two: the grandniece of the testatrix, the appellant here, or to the residuary legatee, the University of Louisville.

If it should be distributed to the grandniece it is because of this provision of the will:

“FIFTH-.

I give and bequeath to my grandniece, Agnes Marie Randall of Route 1, Burlington, Kentucky, all of my household goods, books, silverware, furniture and furnishings, jewelry, clothing and personal effects.” Either the provision just quoted authorizes the property in question to go to the grandniece or it comes under the next provision of the will:

“SIXTH:

All of the rest, residue and remainder of my estate, either real, personal or mixed, of whatsoever kind or character, and wheresoever situated, of which I die possessed ... I hereby give, devise and bequeath to the University of Louisville, Louisville, Kentucky, ...” The further words in the subdivision throw no light on our problem, other than to the extent that they, too, indicate, that which was a fact, that the will was drafted by a skilled lawyer, not by the testatrix herself.

The hearing, on the petition, took but a few minutes. After reading the will the court expressed itself as finding no ambiguity in its terms. Counsel for the grandniece announced that he had a witness from the veterans hospital, which called forth an objection to the receipt of any evidence made by the residuary legatee’s counsel. An offer of proof was permitted by the court, dealing with two matters. First of all, the testimony of a qualified witness from the veterans hospital was offered to establish that the testatrix was a patient there for a considerable length of time; and that the