Fredericka Home for the Aged v. Southern Trust & Commerce Bank

California Court of Appeal Oct 23, 1923 No. Civ. No. 4333.Published

Before: Works

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Holding. The court held that the evidence was sufficient to support the trial court's finding that the decedent intended the handwritten document to be a valid codicil to her will, and that the document was sufficiently signed and connected to constitute a consistent whole.

Issues

Was the evidence sufficient to support the trial court's findings that the decedent intended and executed the alleged codicil?
Was the codicil sufficiently signed by the testator to meet legal requirements?
Did the use of the term '(over)' and the physical separation of the document parts invalidate the codicil?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the testator could inscribe the codiciliary matter in such an enduring form in such a place strongly indicates that her mind had finally crystallized in an intention to alter her will as originally executed.”

“We are of the opinion that the face of the codicil itself thus shows an intent upon the part of the testator to execute the paper by the use of her name in the second place in which it occurs.”

WORKS, J.

In addition to leaving a will, concerning the authenticity of which no question is made, the decedent left behind her certain written matter which was by the trial court admitted to probate as a codicil to the will. Frederieka Home for the Aged was a beneficiary under the. will, but the bequest to that institution was revoked by the alleged codicil, if it shall be determined that the trial court properly admitted it to probate. The Zoological Society of San Diego and the San Diego County Hospital are named as beneficiaries in the codicil. The Fredericka Home appeals from the order of the trial court admitting the codicil to probate as a part of the last will and testament of decedent.

Several points are stated in the brief of appellant, but the determination of all of them depends upon the settlement of but one question: Was the evidence sufficient to support certain findings of the trial court to the effect that decedent intended and executed the alleged codicil as a codicil to her will?

• The matter held by the trial court to be a codicil is altogether in the handwriting of decedent. It is written in ink. It commences- immediately after the signatures of the witnesses to the will proper, on the last page of that instrument, occupies the entire space on that page below the signa-' tures, but is not there concluded. A photographic copy of the will, as well as of the alleged codicil, is before us. We reproduce first the matter at the bottom of the concluding page of the will proper, together with its arrangement, in so

[199]

far as arrangement seems to be material to the question now to be decided:

“Codicil-La Mesa, San Diego Co., Calif.

“June 26th—1922—

“I, Susan Mary Gowan Johnston hereby revoke and cancel the bequest to the Fredericka Home for the Aged as written herein, and all relating to it.

11 And I bequeath to the Zoological Society of San Diego the sum of Two Thousand Dollars- (over) ”

The remainder of the codicil admitted to probate was found on a separate sheet of paper, which had been severed into parts by a jagged tear running across the written matter in such a way as to separate the last line and a part of the line preceding from the remainder. The sheet was found in this condition after the death of the testator, but it has since been pasted together and so appears in the photographic copy. The bottom of the sheet, below the handwriting, did not show a straight edge, but was torn diagonally across the page, the remainder of the paper not being produced. The matter on this separate piece of paper was as follows, both as to context and arrangement:

Fredericka Home for the Aged v. Southern Trust & Commerce Bank

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WORKS, J.

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