Goldthwaite v. Johnson

California Court of Appeal Sep 1, 1934 No. Civ. No. 9324Published

Before: York

AI Brief

AI-generated · verify before citing

Holding. The court held that the olographic writing was not testamentary in character because it merely expressed a precatory desire for the devisee to share property, rather than creating a binding legal obligation or modifying the prior will.

Issues

Is the olographic instrument testamentary in character?
Is an olographic instrument entitled to probate as a codicil if it contains only words expressing a wish or desire?
Does an olographic writing expressing a wish or desire operate to cut down a gift made by a prior attested will?

Disposition. reversed

Quotations verified verbatim against the opinion

“we think that the writing shows that it was addressed to his father, not as executor of the last will and testament of decedent, but rather to his father as a devisee under his will”

“instead of being testamentary in character, it simply expressed a desire that his father, as devisee under the will, should make certain use of the property devised to him.”

YORK, J. The decedent, a resident of Los Angeles County, died on March 31, 1931, in the state of Kansas, as result of an aeroplane fall. Prior to his death, to wit: on February 18, 1930, decedent had executed a duly attested will which was admitted to probate and appellant herein was appointed, executor thereof. In this attested will, decedent devised to his father, the appellant, his homeplaee, together with the furnishings therein. After the attested will had been duly admitted to probate, an olographic writing dated March 28, 1931, was offered for probate by [552]Mary Johnson, now deceased, as and for a codicil to decedent’s last will and testament. This olographic writing read as follows:

“March 28, 1931.

“Father—

“If anything should happen to me (die or be killed) en-route to or from California, or while there, will you do me the everlasting favor of giving one-half the proceeds from the sale of my house and furniture to Mary Johnson, 55 Pineapple St., Brooklyn, N. Y. As you know if you ever get this, the entire house and furniture is willed to you, but I love Mary very much and would like to have her have one-half.

“Thanks, Father.

“Spen

“(Spencer Goldthwaite)”

“I hereby witness that the above was written by Spencer Goldthwaite on March 28, 1931, and that the above is his own signature.

“Robert T. Furman, Jr.”

Appellant by written opposition and contest opposed the probate of the olographic writing set out in full above, upon the grounds that it had not been signed or executed or attested by decedent, as or for a codicil to his last will and testament, or as any will or testament, and upon the ground that the instrument was not testamentary in character.

Upon conclusion of the hearing of the contest, an order was entered in which it was decreed “that that certain writing dated the 28th day of March, 1931, and which the court finds to be wholly written, dated and signed in the handwriting of said Spencer Goldthwaite, Deceased ... be and the same is hereby admitted to probate as a codicil to the last will and testament of said Spencer Goldthwaite, Deceased”. It is from this order that appellant prosecutes this appeal. Under the heading “Statement of Questions Involved”, appellant in his opening brief sets out the following :

Goldthwaite v. Johnson

AI Brief

More from California Court of Appeal

Related research

AI Brief