Wales v. Mills

CHRISTIAN, J. Judith E. Wales, one of the legatees under the will of decedent Harriet B. Smith, appeals from an [497]order entered pursuant to Probate Code, section 1080, determining interests under that will (and a codicil).

The last of a series of professionally drafted wills was executed by testatrix on July 19, 1963. The property subject to that will was a comparatively small portion of the total estate owned by Miss Smith; she had already provided for the management and ultimate disposition of other property through an inter vivos transfer in trust to United California Bank. The will provided for five charitable bequests totaling $9,000 and a $10,000 cash bequest to appellant Judith Wales, a friend who had lived with testatrix during the last few years. Two other specific bequests were made and the residue was given to two cousins, respondents Mills and McDonald. The will contained precatory language asking “my said cousins to carry into effect any request I may leave with them as to the distribution of certain items of tangible personal property, but without intending to impose any legally enforceable obligation upon them to do so.” On October 10, 1965, testatrix signed and dated a handwritten document which began: “To go with my will for the disposal of Household belongings and Personal items.” From a reading of the entire instrument,1 it may well be questioned whether decedent intended by it to express any testamentary directions whatever. There is a strong possibility that her only intention was to give helpful advice to her survivors regarding the disposition of household articles and miscellaneous rummage which she regarded as too insignificant in pecuniary value for inclusion in her probate estate. That interpretation finds some support in the above-quoted provision of the formal will which expressly anticipated that testatrix might leave a separate and legally unenforceable indication of her advice in that regard. But no [498]issue is presented to us concerning the testamentary status of the paper; the executor of the formal will, United California Bank, offered it for probate as a holographic codicil. No one opposed the bank’s petition, and the paper was admitted to probate.

At the hearing on Judith Wales’ Petition to Determine Interests, she contended that the expression “my personal belonging” was ambiguous. Where more than one testamentary instrument is involved, they are to be construed together as a single instrument. (Prob. Code, § 101.) As we read the words “personal belonging” in the context of the language used in the so-called codicil, and in relation to the comprehensive testamentary plan laid down in the formal will, we do not sec any ambiguity calling for a resort to extrinsic evidence. A will must be construed according to the intention of the testator as expressed therein and this intention must be given effect as far as possible. (Estate of Lawrence (1941) 17 Cal.2d 1, 6 [108 P.2d 893] ; Estate of Salmonski (1951) 38 Cal.2d 199, 209 [238 P.2d 966] ; Estate of McLaughlin (1966) 243 Cal.App.2d 516, 518 [52 Cal.Rptr. 543].) In determining the intent of the testator the apparent meaning of the words, phrases and provisions in the will must be subordinated to the dominant testamentary scheme or purpose. Estate of Puett (1934) 1 Cal.2d 131 [33 P.2d 825]; Estate of Kruger (1942) 55 Cal.App.2d 619 [131 P.2d 619] ; Estate of Gansner (1963) 222 Cal.App.2d 390, 394 [35 Cal.Rptr. 213].)