TRAYNOR, J. I dissent.
I concur in the opinion of the court that resort may always be had to extrinsic evidence to explain the actual intention [102]with which an apparently testamentary instrument was executed and that the trial court properly admitted such evidence. In my opinion, however, that evidence, unequivocal, uncontradicted, and unimpeached, clearly demonstrates that Mrs. Sargavak did not intend by the letter of September 29, 1946, to direct the testamentary disposition of her property and the letter should not have been admitted to probate.
It is held that since the letter furnishes rational support for the finding of the trial court that it was executed with testamentary intent, the finding must be affirmed on appeal. The cases cited for the proposition that the extrinsic evidence was properly admitted, however, are also authority for the proposition that a finding of testamentary intent contrary to that evidence cannot be upheld even though it is supported by the terms and appearance of the questioned instrument. If the instrument cannot reasonably be found to be testamentary when read alone, there is no need to resort to extrinsic evidence. In most of the cited cases, not only was the language of the instrument indicative of testamentary intent, it was not indicative of any other. Nevertheless, when the evidence clearly demonstrates that the instrument so construed does not represent the true intention of the writer, it must be denied probate. (Estate of Kenyon, 42 Cal.App.2d 423, 425 [109 P.2d 38]; Estate of Major, 89 Cal.App. 238, 242 [264 P. 542]; Smith v. Smith, 112 Va. 205 [70 S.E. 491]; Rennie v. Washington Trust Co., 140 Wash. 472 [249 P. 992]; see 1 Underhill, Wills, § 39, pp. 47-48.) Thus in the case of a law student who draws a practice will solely as a classroom exercise, uncontradicted evidence of this fact by the instructor and members of the class would overcome any indication of testamentary intent from the instrument itself. Although such an instrument might be written meticulously and in strict conformity with statutory requirements, it would not be entitled to probate, since the writer would not intend that it accomplish a testamentary disposition of his property.
Sometimes extrinsic evidence offered to contradict the apparently testamentary character of an instrument establishes that the decedent executed the instrument written in terms not his own, the legal import of which he neither realized nor intended, as in In re Williams’ Estate (Tex.Civ.App.), 135 S.W.2d 1078, where the decedent executed the instrument under the impression that it was a mortgage. Again, the evidence may establish that the decedent executed an instrument that met the formal requirements for a will, [103]even that he intended that the instrument appear to be a will, but that his actual design was not that the instrument have testamentary effect, but that it serve a nontestamentary purpose not embodied in the instrument. (Lister v. Smith, 3 S.&T. 282; Estate of Siemers, 202 Cal. 424, 435 [261 P. 298]; Fleming v. Morrison, 187 Mass. 120, 123 [72 N.E. 499].) In Fleming v. Morrison, supra, the decedent, to induce a young woman to engage in illicit relations with him, executed a formal witnessed instrument designed to appear as a will, naming her as sole legatee. He showed it to her as his will, intending actually that it have no testamentary effect. The trial court, relying upon the testamentary appearance of the instrument, admitted it to probate. The appellate court reversed the order of admission, holding that it was error for the trial court to attribute any weight to the testamentary appearance of the instrument, since the decedent did not intend the instrument to be testamentary. (See, also, Estate of Kenyon, 42 Cal.App.2d 423, 425 [109 P.2d 38].) In each of the foregoing eases, the writer of the instrument did not thereby express or intend to express his actual intention ; the terms of the instrument were designed to have no operative effect. The courts have therefore consistently held that when the evidence of the writer’s actual intention is clear, convincing, and uncontradicted it is error to rely on evidence of a contrary intention appearing from the terms of the instrument alone. (Clark v. Hugo, 130 Va. 99 [107 S.E. 730, 733]; In re Williams’ Estate (Tex.Civ.App.), 135 S.W.2d 1078, 1082; Estate of Kenyon, 42 Cal.App.2d 423, 425 [109 P.2d 38]; Rennie v. Washington Trust Co., 140 Wash. 472, 479 [249 P. 992]; In re Willing’s Estate, 212 Pa. 136 [61 A. 812, 814]; Succession of Torlage, 202 La. 693, 698.)
Often, however, the evidence will indicate that the decedent sought to accomplish a specific purpose by the terms of the instrument and that this intention was expressed, although imperfectly, by the words chosen, but that the intention was nontestamentary. That is this case. The court cannot disregard the terms of the instrument but must construe them together with the extrinsic evidence to determine their meaning. When the construction of the instrument is based solely on its terms without the aid of extrinsic evidence, or with the aid of extrinsic evidence that is without conflict, “it is the duty of the appellate court ... to interpret the document independent of the construction given to it by the trier of [104]the fact, and to make a final determination in accordance with the applicable principles of law.” (Estate of Norris, 78 Cal.App.2d 152, 159 [177 P.2d 299]; Estate of Platt, 21 Cal.2d 343, 352 [131 P.2d 825]; Union Oil Co. v. Union Sugar Co., 31 Cal.2d 300, 306, 318 [188 P.2d 470]; Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335, 339 [182 P.2d 182]; Western Coal & Mvning Co. v. Jones, 27 Cal.2d 819, 826-827 [167 P.2d 719, 164 A.L.R. 685]; First Trust & Savings Bank v. Costa, 83 Cal.App.2d 368, 372 [188 P.2d 778]; Estate of O’Brien, 74 Cal.App.2d 405, 407 [168 P.2d 432]; Lane-Wells Co. v. Schlumberger Well Surveying Corp., 65 Cal.App.2d 180, 184 [150 P.2d 251]; Moffatt v. Tight, 44 Cal.App.2d 643, 648 [112 P.2d 910]; Landres v. Rosasco, 62 Cal.App.2d 99, 105 [144 P.2d 20].)
In the present case, the extrinsic evidence is clear and unequivocal, uncontradicted and unimpeached. It demonstrates unmistakably that Mrs. Sargavak did not intend to direct a testamentary disposition of her property by the letter offered for probate. On the basis of that evidence, the letter should be denied probate notwithstanding the contrary finding of the trial court. (See In re Kimmel’s Estate, 278 Pa. 435 [123 A. 405, 406].)
The testimony of Mrs. Sargavak’s nurse, set forth at length in the opinion of the court, demonstrates that the only motive for writing the letter was nontestamentary. No other construction can reasonably be placed on the testimony that:
"She said she. had been so disturbed that day and was so very tired and worn out from trouble she had annoying her all day long with her niece and her niece’s daughter; that she didn’t want them to be in her will at all, and she was writing this to fix it so they would know she didn’t want them to have anything to do with her will.”
Mrs. Sargavak again stated her motive for writing the letter, to respondent Mahdesian the following day:
“She said, ‘She is always harassing me, nagging me, and telling me why we didn’t leave anything for her in Harry’s will, her uncle’s will; why we gave so much money to the churches and benevolent organizations,’ and she said, ‘That disturbs me. So I told her that is my own money. We can do whatever we want with our money.’ She says, ‘Again yesterday she disturbed me' and quarreled with me all day, so I have written something over here. I want you to take it and read it.’
As Mahdesian’s testimony quoted in the opinion of the [105]court indicates, Mrs. Sargavak wrote the letter with reference to the provisions of an existing will, to inform Mrs. Shooshan that she would receive nothing thereunder, and to empower Mahdesian to eject Mrs. Shooshan from her house. That she did not also intend thereby to direct the disposition of her property to Mahdesian and Ohanneson is unequivocally demonstrated by her answer to Mahdesian’s query with respect to the allegedly dispositive provision:
“I said, ‘Now what do you mean by this, that you want to leave your belongings to your son, Sam Mahdesian and her attorney, J. George Ohanneson and give them power of attorney ?’
“Well, she said, ‘You are the executor of Harry’s estate, and also you are the executor in my will, and Mr. Ohanneson is our attorney. I want you folks to prepare and take care of my estate, my affairs, in the way that you know I want it. And whenever Lillian Shoostian ever gives any trouble, I want you to have this.’ "
The declarations of the decedent before and after she wrote the letter preclude an inference that she intended thereby to make a testamentary disposition of her property. She had already executed a formal witnessed will dated July 9, 1945. In her conversations with the nurse and with Mahdesian she continually referred to “my will,” demonstrating her conviction that it was still operative.
It is undisputed that decedent’s annoyance with Mrs. Shooshan and her daughter prompted the writing of the letter. That letter was intended as a notification to Mrs. Shooshan that she and her daughter would receive nothing under decedent’s will. That purpose is clearly established by her statement to the nurse “that she didn’t want them to be in her will at all, and she was writing this to fix it so they would know that she didn’t want them to have anything to do with her will.” To accomplish her purpose, Mrs. Sargavak did not have to change her will, since neither Mrs. Shooshan nor her daughter were mentioned therein. Her reference to the letter as a notification to Mrs. Shooshan and her daughter that she did not want them “to have anything to do with her will” demonstrates that she meant to affirm her will, not to revoke it. The existence of a previously executed and unrevoked formal will, to which the testatrix continually referred and which she still considered operative, reinforces the conclusion that she did not intend its revocation by an informal letter [106]that made no reference thereto. (Estate of Spencer, 87 Cal.App.2d 591, 598 [197 P.2d 351]; White v. Deering, 38 Cal.App. 433, 438 [177 P. 516]; Estate of Branick, 172 Cal. 482 [157 P. 238]; Estate of Hughes, 140 Cal.App. 97, 100-101 [35 P.2d 204].)
This interpretation is confirmed by Mahdesian’s uncontradicted testimony as to her explanation of the provision in the letter that she left everything to him and Ohanneson. Although that provision could be deemed dispository if it stood alone (cf., McCloskey v. Tierney, 141 Cal. 101, 102 [74 P. 699, 99 Am.St.Rep. 33]; Innes v. Potter, 130 Minn. 320 [153 N.W. 604]), her explanation that “You are the executor of Harry’s estate, and also you are the executor in my will, and Mr. Ohanneson is our attorney. I want you folks to prepare and take care of my estate, my affairs, in the way that you know I want it” establishes that she wished her executor and her attorney to administer her estate under the terms of the will with which as executor and draftsman, respectively, they were familiar. Mahdesian was then acting as executor of her husband’s will, and she was aware of an executor’s responsibility for the administration of an estate until final distribution. Her purpose was not to make her executor and her attorney her legatees, but to provide them with an instrument that would demonstrate to Mrs. Shooshan that the latter would get none of the property that they were to distribute under her will.
The evidence makes it clear that Mrs. Sargavak did not intend to revoke her will, for her statements demonstrate that she regarded that will as still operative. Such was Mahdesian’s understanding of her statements, although he would have been materially benefited by the interpretation urged by respondent Ohanneson. After the death of Mrs. Sargavak, Mahdesian tried unsuccessfully to get Mrs. Shooshan to leave the house, and then consulted Ohanneson as the decedent’s attorney:
“Then I called the attention of this to Mr. Ohanneson, ‘Mrs. Shoostian refuses to leave, and here is a paper written by Mrs. Sargavak to the effect that Mrs. Shoostian is not to get anything.’
“Then Mr. Ohanneson looked at it, studied it. ‘No,’ he said, ‘Sam, that has another meaning, too.’ He says, ‘You and I are becoming the heirs to her estate.’
“My attitude in the matter was—I said, ‘George, I cannot have a share in a thing like this.’ I said, ‘You have drawn Mr. Sargavak’s and Mrs. Sargavak’s will. You know what their desire was. You know what their wishes were. Mr. [107]Sargavak earned that money and he has passed away, and I cannot give an interpretation to this power of attorney in this way. I cannot have any share.’
“Well, he says, ‘that is up to you. If you don’t want to have a part to it, you can waive your claim, but this is a codicil, and half of it comes to you and half of it comes to me, and I am going to get my share.’
“My next statement to him was, ‘George, when I shave in the morning I want to respect myself when I look in the mirror, and I can’t do it taking advantage of a thing like this.’ ”
The trial court could not have reached its conclusion without disregarding the foregoing evidence. A trier of fact may disbelieve unimpeached testimony when its disbelief is warranted by the motives or interest of the witness or by contradictions appearing in the evidence (Ruth v. Rats, 30 Cal.2d 605, 609 [184 P.2d 521]), but here there is no basis for disbelief. The nurse had no apparent motive for falsifying her testimony, and respondent suggests none. Mahdesian would have been a legatee of an estate worth approximately $24,000 if the letter were admitted to probate; he had nothing to gain by testifying to circumstances establishing that it was not intended as a will. The testimony of both witnesses was completely consistent with all the evidence adduced at the trial. Respondent offers no ground upon which the testimony could be disbelieved, nor does he even contend that it was false. “Testimony which is not inherently improbable and is not impeached or contradicted by other evidence should be accepted as true by the trier of fact.” (Gomez v. Cecena, 15 Cal.2d 363, 366 [101 P.2d 477]; Southern Pac. Co. v. Railroad Com., 13 Cal.2d 125, 129 [87 P.2d 1052]; Nye & Nissen, Inc. v. Central Surety & Insurance Corp., 71 Cal.App.2d 570, 576-577 [163 P.2d 100]; Fidelity & Casualty Co. v. Abraham, 70 Cal.App.2d 776, 782 [161 P.2d 689]; Cowan v. Hill, 109 Cal.App. 656, 658 [293 P. 871].) An examination of the letter in the light of the evidence leaves no room for any conclusion other than that it was not written with testamentary intent. I would therefore reverse the order admitting the letter to probate.
Shenk, J., and Edmonds, J., concurred.
Appellants’ and contestants and respondents’ petitions for a rehearing were denied May 8, 1950. Shenk, J., Edmonds, J., and Traynor, J., voted for a rehearing.