Phillips v. Jackson

KAUFMAN, P. J. This is an appeal from the decree of distribution of the personal property of the estate of Steve E. Barbikas by Bessie Phillips, the niece of the testator and one of the legatees. On appeal, it is argued that the trial court erroneously construed the phrase “personal property” in a codicil, to be ambiguous and erroneously admitted extrinsic evidence and made erroneous rulings pertaining thereto; and that the findings and conclusions of the trial court are not supported by the evidence.

On August 16, 1947, the testator, a bachelor, executed a typewritten witnessed will which had been prepared by his attorney. This instrument made a number of specific cash bequests and devises of real property to various relatives, including the devise of a parcel of real estate to the appellant and the bequest of all the residue of the “cash money,” share and share alike, to the various relatives (including the appellant). The residuary clause left all of the remainder of the estate in trust, as follows: for 21 years, the income of the trust was to go, one-half to the respondent, Bessie Economy (the testator’s sister), and the other half, in equal shares, to the three nieces of the testator, including the appellant. At the end of the 21-year period, the remainder was to go to the respondent, Yytina Society of Greece. On November 1, 1949, the testator executed a holographic codicil as follows:

“This day of first November, 1949.

“the lease June 1, 1946 between Steve G. Barbikas and Pearl I. Matheson a widow

“Store Building containing four (4) stores located on the Southwest corner of 12t.h St. and McDonald Ave., Richmond, Contra Costa County, Calif., and designated as 267-12 St-269 12 St 1130-1136 McDonald Ave.

“in ease of death of Steve E. Barbikas the above lease value and personal property I wish to become soli ownership and property to my niece Bessie T. Barbikas.

“/s/ Steve E. Barbikas”

The codicil was found in the safe used by the decedent at the shoe store on the leased premises, in an envelope containing only the codicil and the leases. The decedent died on December 8, 1951. The witnessed will and the codicil were jointly admitted to probate. At the time of the testator’s death, there was substantial personal property in his estate [287]including cash in bank accounts and various stock certificates and bonds found in a safe on the leased premises.