Estate of Dunn

WARD, J.

The question upon which this appeal may be determined is whether an instrument admitted to probate as a codicil to a holographic will does in fact revoke certain legacies mentioned in the original will.

Frank Dunn, sometimes referred to as Frank M. Dunn, deceased, left a will directing that payment of certain sums of money in designated banks should be “apportioned” to two sisters and a nephew in the amounts of $2,000, $500 and $100 respectively, with a further direction that “all cash remaining after these bequests have been distributed and expenses paid, I leave to my wife Violet L. Dunn”. A specified sum of money and clothing was bequeathed to his brother, but these items were scratched out. The intention of the testator when he signed the holographic will was to apportion specific items of his estate to the individuals named. The codicil, dated approximately three years later, is in part as

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follows: “In case of accident or death all stock owned by me is hereby given to my wife Violet L. Dunn.” Thereafter shares of stock in certain named corporations are listed, and under the caption “Money on Deposit”, the names of three banks appear. In two instances, opposite, and in connection with the number of shares, is written the word “sold”, and in one instance the words “in box”. One of the items of stock and the names of two of the banks appear with lines drawn therethrough. The instrument is signed twice “Frank M. Dunn”. The appellants filed a petition for distribution praying that the money in the banks named in the will and codicil, be distributed to the petitioner Violet L. Arthur, formerly Violet L. Dunn, under the provisions of the codicil. Opposition was filed by the sisters and the guardian of the nephew, praying that the legacies designated in the will should be paid to them. The petition of Violet L. Arthur was denied. The amounts of money on deposit in the banks did not equal the sums set forth in the will and respective proportions thereof were decreed to the three named legatee sisters and nephew. From this decree and order, Frank E. Boysen and Violet L. Arthur, administrator and administratrix, respectively, appeal.

The terms of a will may not be disturbed by language in a codicil unless such language evinces a limitation or change in words as definite in expression as the terms of the will. (Probate Code, sec. 104;