Estate of Rose

California Court of Appeal Dec 18, 1928 No. Docket No. 6237.Published

Before: Keetch

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Holding. A subsequent holographic will containing an express revocation clause and making a full, inconsistent disposition of the testator's property effectively revokes a prior will, even if the subsequent will fails to mention a beneficiary included in the first.

Issues

Did the testator's second will revoke his prior will?
Should two testamentary documents be read together as a single will when the second contains an express revocation clause and a full disposition of property?

Disposition. affirmed

Quotations verified verbatim against the opinion

“As a general rule, the presence of a revoking clause in a later writing is accepted as conclusive proof of an intention on the part of the decedent to nullify the provisions of an earlier instrument.”

“A man cannot have two independent wills at the same time, each acting upon the same subject matter and each professing to make a distinct and full disposition thereof.”

[581]

KEETCH, J.,

pro tem.

Emmason C. Rose, the husband of appellant herein, died June 10, 1927, in the city of Los Angeles. Prior thereto he executed two holographic wills, one dated April 16, 1927, and the other June 4, 1927—the latter six days prior to his death. The will of April 16th reads as follows:

“I, Emmason C. Rose, being of sound and disposing mind and healthy body, herewith declare this my last will and testament and declare all others null and void.

“First: I direct that my wife, Betty S. Rose, be appointed executor and administrator of this my last will and testament and that she serve without bond and that my wife, Betty S. Rose, be given power to mortgage, sell, lease, or dispose of all or any part of my estate without first obtaining consent of court, but subject to approval of court thereafter.

“Second: I direct all my just debts be paid.

“Third: I direct my funeral expenses be moderate in cost and that my remains be placed in a burial vault at Forest Lawn.

“Fourth: I appoint my wife, Betty S. Rose, guardian of my son, Watson S. Rose.

“Fifth: I direct my wife, Betty S. Rose, to place Five Thousand ($5,000.00) Dollars, in at least four different preferred stocks or bonds, and hold same in trust and administer the same in trust, my wife to receive the income thereof until my son, Watson S. Rose, becomes twenty-one years of age, when I direct the principal so invested, be given to Watson S. Rose, for his possession to have and hold. Should, however, Watson S. Rose not attain the age of twenty-one, then this trust becomes the possession of my wife, Betty S. Rose, to have and hold.

“Sixth: I herewith give and bequeath to my wife, Betty S. Rose, all my remainder possessions, both real and personal, wherever situated, to have and hold as her separate and own possession.

“Seventh: Should, however, my wife, Betty S. Rose, die before my death, then I request the Court to appoint the Farmers and Merchants National Bank of Los Angeles as my executor and I direct them to administer my estate for the benefit of my son, Watson S. Rose, giving him the interest my said estate until he reaches the age of twenty-one

Estate of Rose

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KEETCH, J.,

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