Bott v. Wright

Opinion

TAYLOR, J. On this appeal by Lora T. Bott from an order denying her petition for heirship and for appointment as coexecutor of the decedent’s will, the contentions are that the evidence is insufficient to support the finding that the decedent intended to partially revoke his will, and that the court erred in applying the doctrine of dependent relative revocation.

The appeal is on a settled statement. The testator, Charles Uhl, died on September 7, 1967, a resident of the County of Santa Cruz. His will, a formal witnessed document executed in 1946 in Chicago, Illinois, was found in a metal box in the closet of the bedroom in his Aptos home. The pertinent portions of the will, as originally drafted, are contained in the third paragraph, the first section of which bequeathed a total of 52 shares of the residuary estate to designated members of the testator’s immediate family, while the second and third sections bequeathed a total of 48 shares [141]of the residuary estate to certain designated friends. Appellant was named in the second section of the third paragraph as a friend to receive six shares, in the sixth paragraph as the conditional legatee of certain shares bequeathed to two other friends, and in the tenth paragraph as a coexecutor with one Russell Wright.

The will, as admitted to probate, contained a number of interlineations and markings made by the testator in colored pencil, including a notation in the left-hand margin of the first page, stating “Revise whole mess.” Among the changes made by the testator in the first section of the third paragraph was to cross out the figure 12 as to shares allocated to his mother and the insertion of the figure 24; in a similar manner, the 7 shares each originally left to his sisters, Pearl Demos and Eleanor Lott, and his brother Victor, were reduced to 3 each for the two women and one for Victor. In the second section of the third paragraph, a line was drawn through appellant’s name and the 6 shares originally allotted her, as well as the names and number of 12 shares originally left to several other persons who are not parties to this appeal. Appellant’s name was also stricken from the other two provisions of the will, and there were other markings in the tenth paragraph indicating that the person originally named as alternative executor was to serve as coexecutor.

The trial court, following Estate of Martens, 10 Cal.2d 395 [74 P.2d 238],1 held that the cancellations mentioned above constituted a revocation of the particular provisions mentioned and admitted the will to probate, except for the items crossed out and that certain interlineations, such as the appointment of a new coexecutor, were ineffective. However, as to the changes in the shares allocated to the testator’s mother, two sisters and one brother, the trial court applied the doctrine of dependent relative revocation,2 and concluded that the cancellations of these amounts were made with conditional revocatory intent. Accordingly, the court admitted to probate the original provisions of the documents as to these four members of the testator’s family. Thus, the will, as admitted to probate, completely excluded appellant as a legatee and as coexecutor.