Forth v. Levine

California Court of Appeal Apr 1, 1949 No. Civ. No. 16673Published

Before: Doran

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Holding. The court held that a typewritten document lacking the required number of witnesses could not be incorporated by reference into a valid holographic will merely because the documents were found together in the same safe deposit box. The court further affirmed that a document nominating executors is testamentary in nature and entitled to probate even if it does not dispose of property.

Issues

Whether an improperly witnessed typewritten will can be incorporated by reference into a valid holographic will based on their proximity in a safe deposit box.
Whether a document that only nominates executors is entitled to probate as a will.
Whether the trial court abused its discretion in denying a motion for a continuance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The Western Union letters, although valid as an holographic will, can give no validity to the “incomplete will.””

“Nor can any validity be imparted to the “incomplete will” from the mere fact that it was found in the same box which contained the holographic instruments.”

DORAN, J. Herman Selditch, a resident of Los Angeles County, died on August 15, 1946, at Mexico City. Thereafter, one Clara Forth, named as executor, petitioned for probate of two holographic documents written upon Western Union telegraph blanks, together with a typewritten will signed by decedent but attested by only one witness, the latter document being sometimes referred to as the “incomplete will.” These documents were found in decedent’s safe deposit box. The theory of the petition and of appellant is that the so-called “incomplete will” was entitled to probate by reason of its incorporation by reference in the holographic Western Union documents. The trial court refused to adopt this theory.

A contest to the probate of the above described documents was filed by Annie Levine, a sister of decedent, who would be entitled to succeed to a part of the estate under the California laws of succession. The trial court found that the Western Union holographic documents constituted the decedent’s will but refused probate of the so-called “incomplete will” either by itself or as a part of the Western Union documents.

The petitioner, Clara Forth, has appealed from that portion of the judgment denying probate of the “incomplete will,” and also from the trial court’s denial of a continuance sought for the purpose' of producing additional evidence. Annie Levine has appealed from that portion of the judgment granting probate to the holographic Western Union documents.

In the language of the trial court’s findings, the so-called “incomplete will” found in the decedent’s safe deposit box was, “a typewritten document bearing date of July 12, 1946, . . . signed by the decedent and witnessed by one John W. Buzzell, and ... no other subscribing witnesses.”

A letter, signed, dated and entirely in decedent’s handwriting, written on Western Union telegraph blanks, found in the same safe deposit box, read as follows:

“8-7-46

‘ ‘ To the Officers of the Bank of America 7th and Broadway Branch,

Los Angeles, California

“Please honor the requests of Mrs. Clara Forth and Samuel Selditch. They are the Executors of my Will without bond. Please notify my brother at 5019-Beverly Road, Brooklyn New York. Thank You.

“Herman Selditch

“Box 560, Los Angeles.”

[64]

Forth v. Levine

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