Simon v. Grayson

WASTE, C. J.

The question presented for determination upon this appeal involves the construction and effect to be given a provision in a will purporting to incorporate a letter by reference. Respondent’s claim to certain of the estate’s funds is based upon the terms of the letter. The appellants, who are residuary legatees under the will, contend that the attempted incorporation by reference was ineffectual. The facts, which were presented to the trial court upon an agreed statement, are as follows:

S. M. Seeligsohn died in 1935. His safe deposit box was found to contain, among other things, a will and codicil and a letter addressed to his executors. The will, which was dated March 25, 1932, contained a provision in paragraph four, leaving $6,000 to his executors “to be paid by them in certain amounts to certain persons as shall be directed by me in a letter that will be found in my effects and which said letter will be addressed to Martin E. Simon and Arthur W. Green (the executors) and will be dated March 25, 1932.” Paragraph four also provided that any one having an interest in the will “shall not inquire into the application of said moneys” and that the executors “shall not be accountable to any person whomsoever for the payment and/or application of said sum . . . this provision ... is in no sense a trust”.

The letter found in the testator’s safe deposit box was dated July 3, 1933, and stated: “In paragraph VIII of my will I have left "you $6,000—to be paid to the persons named in a letter and this letter is also mentioned in said paragraph. I direct that after my death you shall pay said $6,000 as follows: To Mrs. Esther Cohn, 1755 Van Ness Ave. San Francisco, Calif, the sum of $4,000— ... If any of the said persons cannot be found by you within six months after my death, or if any of the said persons shall predecease me, the sum directed

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to be paid to such persons . . . shall be paid by you to my heirs as described in paragraph IX of my said Will. . . . ” This letter was written, dated and signed entirely in the handwriting of the testator. No letter dated March 25, 1932, was found among his effects.

The codicil to the will was executed November 25, 1933. It made no changes in paragraph IV of the will and contained no reference to the letter, but recited, “Except as expressly modified by this Codicil, by Will of March 25th 1932 shall remain in full force and effect.”