Pollock v. Tappan

LANGDON, P. J.

This is an appeal from an order and judgment of the superior court for the county of Alameda, admitting to probate as the last will of Margaret Graham, deceased, two certain documents hereinafter described.

The facts of the case are: Margaret Graham died on July 9, 1917, leaving as her only heirs at law the appellants, Bridget Pollock, Sarah Burns, and Mary Wall, sisters, and appellants, Eva Schutte and Lillie Terwilliger, nieces, daughters

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of a deceased sister. Her estate was valued at about nine thousand dollars. She had previously executed three testamentary documents—two wills and a codicil. The two wills were executed on the same day—May 17, 1917—one in the morning and the other in the afternoon. The codicil was executed on June 25, 1917. The will executed in the morning and the codicil were filed for probate on July 12, 1917, and later, on November 13, 1917, an amended and supplemental petition for probate was filed which stated that two wills and a codicil had been left by deceased, set out the second will as well as the first will and codicil, and asked the court to admit to probate such of the documents as might be determined to be valid wills of the deceased. A contest was filed by the appellants upon several grounds, all of which were decided against the contestants, and the second will and the codicil were admitted to probate as constituting the last will of deceased. There were a number of grounds of contest, but as the appeal is taken upon the judgment-roll alone and no evidence is before us, we may not review the findings upon the questions of fact presented by the contest, and the condition of the record invites our consideration only to the question of law as to the correctness of the action of the trial court in admitting to probate the instrument entitled “Codicil to My Last Will.” It is appellants’ contention that the second will alone should have been admitted to probate; that it appears upon the face of the codicil that it was not a codicil to such will and that it was, therefore, improperly admitted to probate.

The relevant facts with réspect to these several documents are: The documents were all executed with proper formalities. In the first will the testatrix directs her executor to pay five hundred dollars to ’Rev. Father Galvin; three hundred dollars to Annie Fortman; five hundred dollars to St. Joseph’s Church; five hundred dollars to the same church for prayers; two hundred dollars to R. B. Tappan, and the residue of the estate is devised to Maria Anderson, of San Francisco. By this will all former wills are revoked. By the second will the testatrix bequeathed five hundred dollars to Father Galvin;/'two hundred dollars to R. B. Tappan; three hundred dollars to Annie Fortman; five hundred dollars 'to St. Joseph’s Church, and five hundred dollars to the same church for prayers, and by this instrument no disposition is made