LANGDON, J., Dissenting.—I dissent.
Before proceeding to a discussion of the issue, I think it is proper to point out that the will of 1916 is entirely relevant and material, and should have been admitted as part of the record herein, for reasons which will hereinafter appear.
The general rules which should guide the determination of this appeal are well established. The intent, of the testator is the object of all construction of testamentary instruments. Several testamentary instruments executed by the same person are to be construed together as one instrument; and all the parts of a will are to be construed in relation to each
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other to form, if possible, a consistent whole. (See Prob. Code, secs. 101, 103;
Estate of Peabody,
154 Cal. 173 [97 Pac. 184];
Estate of Coleman,
189 Cal. 612 [209 Pac. 571].)
The problem is not simple, and speculation as to the actual state of mind of the decedent is not helpful. Our task is, by the rules of law and sound policy, to determine her intention from the facts, and in accordance with reasonable inferences from these facts. The first and undeniable fact is that the two instruments, while they differ considerably in some respects, and cover much the same ground in other respects, are not wholly irreconcilable. Both can be given effect. Inconsistent provisions of the earlier one may be omitted, and those not inconsistent may be permitted to remain, without injury to the basic scheme of the testatrix. The assertion that the March instrument makes a new and complete disposition of all the property is true, but only for the reason that it contains a residuary clause. Any instrument having a residuary clause completely disposes of the property. But the general residuary clause cannot be deemed irreconcilable with prior gift provisions, and hence the presence of such residuary clause in the March instrument does not give rise to the inference that it is the sole valid testamentary instrument. We must look elsewhere for our inferences.
The second fact is the designation of the March instrument as “Continuation of my last will and testament.” This statement is so clear that it defies misinterpretation. No inference is needed to add to its meaning, and it is both unnecessary and dangerous to speculate upon the possible sense in which the term “continuation” was used. “It is undoubtedly settled law relative to the interpretation of wills that the intent of the testator must be extracted from the express terms of his will, and that courts are not permitted to indulge in conjecture or surmise for the purpose of arriving at an intent which is not reasonably to be drawn from the language of the document itself.”
(Estate of McKay,
42 Cal. App. 361, 362 [183 Pac. 574, 575].) “The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained.” (Prob. Code, see. 106.) The testatrix has expressly stated that
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the writing executed in March is a part of some other and prior instrument, and that the other and prior instrument is her last will and testament. The only instrument which fits that description is the instrument executed in December.
The third fact is that eight months after the making of the March instrument the testatrix directed that the December instrument be placed in a bank vault for safekeeping. Captain Martin testified that in October, 1929, as he was about to leave on a short trip to Mexico, the testatrix gave him an envelope and directed him to place it in his safe deposit box. This envelope contained the December instrument. If, as respondents contend, the March instrument had already revoked it, it is difficult to understand why its preservation should be important. Respondents say that the explanation for such conduct on her part must be purely conjectural and hence useless; and they ask why, if she regarded both instruments as constituting her last will, she chose to separate them, giving one to Captain Martin for deposit, and leaving the other in a box of valuables in her own home. However, eliminating all inferences, the fact remains that she took pains to preserve a-document at a time many months after the supposed revocation thereof; and this affords some indication of a belief on her part that the document was still operative.
The final fact of importance centers about the will of 1916, to which reference has already been made. It is contended by respondents that the revocation clause at the beginning of the March instrument was necessarily directed at and effective against the December instrument. That this is inconsistent with the heading of the March instrument—“Continuation of my last will and testament”—is plain; and the weakness of the contention becomes still more obvious when the 1916 will is examined. This appears to "be an organized and complete disposition of all her property at the time it was drafted. It is covered with corrections, interlineations, sections crossed out and canceled; the signature at the bottom of each page is crossed out, and the signature at the end is removed. The important fact, however, is that at the top of this instrument appear these words in the handwriting of the decedent: “Void March 27 —1929' San Leandro.” It is a reasonable inference from this fact that the revocation clause in the March instrument was directed
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at the 1916 will. We may assume, as respondents contend, that that revocation clause was intended to revoke some prior will, either the 1916 will or the December instrument. It is perfectly reasonable to infer that the 1916 will was intended, for it is clear that she had it in her hands at the time, and took pains to state expressly on the document that from that time on it was void. This statement, it should be remembered, was written on the 1916 will on the very day the March instrument was executed. She made no similar statement at that time or at any other time about the December instrument. On the contrary, months later she committed it to her trusted friend for safekeeping.
My conclusion is that the instrument executed by the decedent in December, 1928, with all the necessary formalities of an holographic will, was never canceled or revoked, either by the express revoking clause in the March instrument or by the provisions of the March instrument. The March instrument, while it might have been a sufficient testamentary disposition and a valid will if standing alone, should, in view of the circumstances, be regarded as a codicil.
The order should be reversed, with directions to the lower court to admit to probate the instruments of December 13, 1928, and March 27, 1929, as the last will of the decedent.