Opinion
Rehearing Denied March 29, 1965.
For Opinion on Hearing, see 47 Cal.Rptr. 480, 407 P.2d 656. Reid, Babbage & Coil and Horace O. Coil, Riverside, for claimants and appellants.
Harmon D. Spanner, Woodland Hills, for petitioner and respondent.
KINGLEY, Justice.
Mrs. Barnes died on September 24, 1962, leaving a will, the pertinent parts of which read as follows:
'SECOND: I declare that I am married, and that my husband's name is CARLTON BARNES, and that I have no children.
'* * *
'FOURTH: It is my intention hereby to dispose of all my property, whether real, personal or mixed, of which I am able to dispose by Will, which I now have and which I may hereafter acquire.
'FIFTH: I hereby give, devise and bequeath all of my property, whether real, personal, or mixed, and wherever situate, to my beloved husband, CARLTON BARNES.
'SIXTH: In the event that the death of my husband and myself shall occur simultaneously or within two weeks of each other, or in the same common accident or calamity, or under any circumstances causing doubt as to which of us survives the other, then, and in such event, I hereby give, devise and bequeath all of my estate of whatsoever kind and character and wheresoever situated, to ROBERT ERLE HENDERSON, who now resides at 2439 1/2 Berry Avenue, Los Angeles, California.
'SEVENTH: If any devisee, legatee, or beneficiary under this Will, or any person claiming under or through any devisee, legatee or beneficiary, or any other person, who, if I had died wholly or partially intestate would be entitled to share in my estate, shall, in any manner whatsoever, directly or indirectly, contest this Will, or attack, oppose or in any manner seek to impair or invalidate any provisions hereof, or shall in any manner whatsoever conspire or cooperate with any person or persons attempting to do any of the facts or things aforesaid, or shall settle or compromise directly or indirectly, either in or out of court, with any such contestant, or shall acquiesce in or fail to oppose any such proceedings, or shall endeavor to succeed to any part of my estate, otherwise than through this Will, then and in such of the above-mentioned cases, I hereby bequeath to such person or persons the sum of One Dollar ($1.00) only. 'NINTH: I hereby nominate and appoint my beloved husband, CARLTON BARNES, as Executor of my Will, said Executor to act without bond; but in the event that he refuse or for any reason be unable to act as such Executor, then and in such event I hereby nominate and appoint ROBERT EARL HENDERSON as Executor, to act without bond.'
The will contained no residuary clause. Carlton Barnes predeceased the testatrix by some five years. She left no lineal descendants, but did leave, as her heirs at law, two brothers (Lionel V. Snow and Clyde V. Snow), two sisters (Norma Henderson and Lysle Dennis), one nephew and two nieces (Gene Snow, Nannette C. Hagan and Madaliene Mulholland), the children of deceased brothers and sisters. Robert Erle Henderson, the petitioner and appellant, is a nephew, being the son of testatrix' sister, Norma Henderson, but, since his mother survives, is not an heir at law. The will was duly admitted to probate and Robert Erle Henderson was appointed and qualified as executor. He thereafter filed a petition to determine heirship, claiming that, under a proper construction of the will, he was entitled to succeed to the entire estate. Statements in opposition were filed on behalf of Gene Snow, Nannette C. Hagan and Madaliene Mulholland; at the hearing on the petition, an appearance was made on behalf of the estate of Lionel V. Snow, who had died after his sister.
Over objection by the adverse claimants, the trial court received testimony from Norma Henderson concerning the relationship between petitioner and testatrix at the time of execution of the will. This testimony was to the effect that, at or about the time of the execution of the will, the testatrix lived close to petitioner and his mother, Norma Henderson; that the testatrix visited the home of the petitioner and the home of petitioner's mother frequently, about three to four times per week; that the petitioner visited frequently at the home of the testatrix; that a close relationship existed between the testatrix and the petitioner; that the testatrix was very fond of the petitioner and often introduced him as her son; that the testatrix and the petitioner made outward displays of affection towards one another; that the testatrix spent many holidays at the home of the petitioner; that the other relatives did not visit the testatrix; that the testatrix was married in the year 1905; but did not have any children. At the close of the hearing, a motion was made to strike this testimony. The trial court made findings that the will was ambiguous, that the testimony of Norma Henderson was admissible, and construed the will in favor of petitioner Robert Erle Henderson. From a decree in petitioner's favor, Gene Snow and Nannette C. Hagan have appealed. No appeal was taken by Madaliene Mulholland or by the representative of the estate of Lionel V. Snow.
We need not determine whether or not the extrinsic testimony was properly received in evidence. Assuming that it was properly received, it did nothing to assist in interpretation of the will. It served to explain why petitioner was named as alternative beneficiary in the particular situation which the testatrix had in mind in drafting her will; but it sheds no light on the intention of the testatrix in the situation which actually resulted.
On its face, the will herein involved creates a vacuum. Testatrix made no disposition of her property in the event she died, as she did, long after her husband. But if we give to paragraph EIGHTH its literal effect, she has also declared that no one should inherit the property thus left undevised and unbequeathed. The law does not permit such a result. It is well settled The problem before us, then, is whether or not the will, aided if necessary by the testimony offered by petitioner, can be construed as making a gift of the property left undisposed of by paragraph SIXTH. As we have indicated, we do not believe that it can be so construed. It is true that a court strives to avoid intestacy, but the court may not, in that endeavor, write a will which the testatrix did not write. Clearly, here testatrix desired that her husband receive all of her property. She realized that, under the circumstances set out in paragraph SIXTH, she would have no further opportunity to select an alternate and therefore, in light of the relationship indicated by the testimony introduced in the trial court, she selected petitioner. But she reserved the opportunity to review her choice of an alternative or alternatives if time to do so was given her. Had her attention been directed, after the husband's death, to the lack of a disposition, she might, of course, have selected petitioner; but she might also have relaxed her disinheritance of other relatives, or she might have selected some non-relative as her beneficiary. We do not know; any selection by us would be no more than a guess--a guess which we have no power to make. Except for the fact that the disinheritance clause here is stronger (as we have seen an immaterial factor), the present case seems to us to be on all fours with Estate of Maxwell (1958) 158 Cal.App.2d 544, 322 P.2d 1018, and we regard the reasoning in that case, and in the earlier California cases on which it relies, which we have paraphrased above, to be sound and controlling.
Respondent refers us to the discussion in the recent case of Estate of Shannon (1965) 231 Cal.App.2d ----, 42 Cal.Rptr. 278 of the doctrine that the interpretation given by a trial court, if reasonable, is binding on an appellate court where the trial court acted on extrinsic evidence. But that rule is not applicable here. The rationale of the rule is that the trial court, having seen and heard witnesses, is in the better position to weigh their testimony. But where the oral testimony, given all possible weight, falls short of supporting the trial court's interpretation, the reason for the rule fails, and the rule falls with it.
231 A.C.A. 975.
The order appealed from is reversed.
FILES, P. J., and JEFFERSON, J., concur.