Estate of Martens

California Supreme Court Dec 20, 1937 No. L. A. 16080Published

Before: Waste

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Holding. The court held that a testator's physical cancellation of the executor appointment clause in a will effectively revoked that portion of the will, even though the testator's subsequent attempt to appoint new executors was legally invalid. Consequently, the court ruled that the estate should be administered by the testator's children as administrators with the will annexed rather than the originally named executor.

Issues

Whether a testator's physical cancellation of the executor appointment clause in a will constitutes a valid partial revocation under the Probate Code.
Whether an invalid attempt to substitute new executors renders the entire revocation of the original executor clause void.
Who is entitled to appointment as administrator with the will annexed when the original executor appointment is revoked and the substitute appointment is invalid.

Disposition. reversed

Quotations verified verbatim against the opinion

“The insertion of the names of an executrix and executor in the will at the instance of the testator amounted merely to an empty and illegal appointment.”

“The judgment of the trial court granting, letters testamentary to Henry E. Sherer is reversed.”

WASTE, C. J.

The decedent, John D. Martens, executed a last will and testament dated October 17, 1929, by which he devised and bequeathed his entire estate to his son and daughter in equal parts. Paragraph 5 of the will, relating to the appointment of an executor, read: “Fifth: I hereby appoint and nominate Sylvester Rocco of San Pedro, California, as Executor of this my Last Will and Testament, and in the event he cannot or does not act as such executor, then and in that event, I nominate Henry E. Sherer of San Pedro, California, as executor in his place and stead. ’ ’

The will was placed in the custody of a bank in San Pedro, with which institution Rocco and Sherer were associated, and there remained until some time in March, 1933, when the testator secured it. It thereafter remained in his possession. The evidence, beyond dispute, shows that on May 10, 1933, Martens, in the presence of his daughter, Pearl E. Train, and her husband and son, requested the husband to draw a line by means of a typewriter through the words in Paragraph Fifth “Sylvester Rocco of San Pedro” and “in the event he cannot or does not act as such executor, then and in that event, I nominate Henry E. Sherer of San Pedro, California, as executor in his place and stead”. After some general conversation at this time as to who should be named

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as executor, Martens requested that the names “Pearl E. Train and Arthur R Martens”, his daughter and son, respectively, be inserted in paragraph 5. The testator then directed the husband of Mrs. Train to write at the bottom of the will the following: “Article No. 5 above was changed by myself on this ten day of May, 1933.” Martens then signed his name to the memorandum written by Train, and Train witnessed his signature.

On Martens’ death, the daughter and son filed their petition for probate of the will and for their appointment as executors thereof. Henry E. Sherer also filed a petition for probate, asking that letters testamentary be issued to him, setting forth in his petition that Sylvester Rocco had declined to act as executor and had filed his waiver to that effect. Pearl E. Train and Arthur R. Martens thereupon filed their written opposition and contest to Sherer’s petition for probate, and by separate petition sought appointment as administrators with the will annexed. After due hearing the trial court admitted the will to probate and granted letters testamentary to Henry E. Sherer. Pearl E. Train, the decedent’s daughter, alone appeals.

Estate of Martens

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WASTE, C. J.

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