Longshore v. Desmond

California Court of Appeal Dec 11, 1963 No. Civ. 21277Published

Before: Taylor

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Holding. The court held that the trial court's finding that the decedent's will was unconditional was supported by substantial evidence, as the disputed language expressed the decedent's motive or inducement for making the will rather than a condition precedent.

Issues

Whether the trial court's finding that the will was unconditional was supported by sufficient evidence.
Whether the language in the will created a condition precedent or merely expressed the testator's motive for making the will.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the deceased did not intend to use certain language in the instrument as a condition precedent to the effectiveness of the document but as an expression of inducement”

“To establish a condition, the will must contain language which clearly indicates a purpose to limit its operation”

“We conclude that there was substantial evidence to sustain the trial court’s finding that the testamentary disposition was unconditional.”

TAYLOR, J.

This is an appeal from a judgment denying the appellant’s petition to revoke probate of her mother’s will. The only question is the sufficiency of the evidence to support the findings and conclusions of the court below.

[213]

Helene L. Desmond died on May 28, 1959, leaving a holographic will dated August 31, 1951, which was admitted to probate on September 17, 1959. The chief beneficiary is the respondent, William L. Desmond, one of the sons of the decedent and the executor named in the instrument. The other beneficiaries are the remaining adult children of the deceased and three of her ten minor grandchildren. Joseph F. Desmond, the other son, filed his petition for revocation of probate and was joined therein by his sister, Ruth M. Longshore, the sole appellant herein, The contestants alleged that the document admitted to probate was not a valid testamentary instrument in that it was a conditional will, the condition of which was never fulfilled, making the instrument inoperative and invalid.

The matter was heard by the court sitting without a jury. After hearing all of the evidence, the court made, among others, a finding of fact that the deceased did not intend to use certain language in the instrument as a condition precedent to the effectiveness of the document but as an expression of inducement and entered its judgment denying the petition to revoke probate. This appeal ensued.

The disputed language in the document dated August 31, 1951, reads as follows: “The enclosed should convey my wishes of disposition to be made of any and all of my personal and tangible possessions in case I should have a mishap and not return due to some unforeseen accident” and “My last will and testament before leaving on a short trip. ’ ’

The document was written, dated and signed by the deceased prior to a trip to the eastern part of the United States taken in 1951. Just before leaving, the deceased delivered the document to her other daughter, Patricia Fitzgerald, one of the respondents herein. Upon her return from the trip, the deceased took back the document and retained exclusive possession thereof until her death. On May 9, 1959, before leaving her San Francisco residence, the deceased placed the document just inside the safe in her desk in her bedroom. The document was placed on its edge with the face of the envelope facing the door of the safe in a striking, arresting position immediately observable to anyone opening the safe.

Longshore v. Desmond

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TAYLOR, J.

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