[1b] The appellant relies upon decisions where an instrument which was intended by the grantor to be a conveyance was held not to be operative as such because it did not pass any present interest, and to be void as a will, because not executed in conformity with the statute of wills. ( Cohn v. Klein, 209 Cal. 421 [ 287 P. 459]; Niccolls v. Niccolls, 168 Cal. 444 [ 143 P. 712]; Estate of McEuen, 18 Cal.App.2d 180 [ 63 P.2d 332]; and cf. Estate of Heuler, 207 Cal. 391 [ 278 P. 1031], where a contract in consideration of marriage was held to be a valid testamentary disposition of certain property.) But by the agreement which Howe made with Netz, contractual obligations were created, and determinations which concern conveyances without consideration are not in point.
The court, however, after consideration of these documents granted appellant's petition for letters. Thereafter one of decedent's sons, George E. Heuler, in another proceeding, presented, with his petition for its probate, said so-called "marriage contract," the validity of which as the last will of the deceased is established by our recent decision affirming the judgment admitting it to probate ( Estate of Heuler, 207 Cal. 391 [ 278 P. 1031]). Said son likewise filed his petition herein seeking revocation of the letters issued to appellant upon the ground that the deceased did not die intestate, but left a will, then being propounded for probate, which said widow and said administrator had failed and refused to present.
One issue considered was whether the will was conditional on his dying at sea. The court found that although the possibility of dying at sea was the occasion for the making of the will, the testator reaffirmed it repeatedly after he came back alive from serving in the Navy. (For examples of interesting holographs see Halldin v. Usher (1958) 49 Cal.2d 749 [ 321 P.2d 746]; Estate of Heuler (1929) 207 Cal. 391 [ 278 P. 1031]; Estate of Stephenson (1965) 235 Cal.App.2d 326 [ 45 Cal.Rptr. 121]; Estate of Geffene (1969) 1 Cal.App.3d 506 [ 81 Cal.Rptr. 833]; Estate of Kuttler (1958) 160 Cal.App.2d 332 [ 325 P.2d 624].) Perhaps one of the most extreme examples of a court's finding a document to be a holographic will is Estate of Smilie (1950) 99 Cal.App.2d 794 [ 222 P.2d 692].
The revoking clause in what purports to be a will does not take effect unless the will becomes effective. In re Thompson's Estate, 185 Cal. 763, 198 P. 795; Rudy v. Ulrich, 69 Pa. 177; In re Heuler's Estate, 207 Cal. 391, 278 P. 1031; 1 Jarman on Wills 170. Lifetime Edition; In re Tremain's Will, 169 Misc. 549, 7 N.Y.S.2d 781; 62 A.L.R. 1407; Leard v. Askew, 28 Okl. 300, 114 P. 251, Ann.Cas. 1912D, 234. Where the facts show that no findings conflicting with the court's conclusion could be made on the evidence, the judgment will not be reversed.
ssi, 34 S.W.2d 8; Burns v. Nolette, 144 A. 848, 67 A.L.R. 1051; Soulard's Estate, 43 S.W. 617; Galloway v. Galloway, 169 S.W.2d 883; Fendler v. Roy, 58 S.W.2d 459; Chapman v. McIlwrath, 77 Mo. 38; First National Bank v. Liberty Trust, 134 A. 210, 47 A.L.R. 730; Brodrick v. O'Connor, 271 Mass. 240, 171 N.E. 479; Ford v. Ford, 259 N.W. 138; Batal v. Buss, 199 N.E. 750; Goldston v. Randolph, 199 N.E. 896; Geel's Estate, 143 S.W.2d 327; Sigal v. Hartford Bank, 177 A. 742; Christ v. Huehne, 172 Mo. 118; Lanphere v. Affeld, 99 481 S.W.2d 36; Sims v. Brown, 158 S.W. 624; Trautz v. Lemp, 46 S.W.2d 135, 329 Mo. 58; Cartall v. St. Louis Union Trust Co., 348 Mo. 372, 153 S.W.2d 370. (5) In determining whether a given act is testamentary or non-testamentary in character, the intention of the decedent controls, and the undisputed proof in these proceedings demonstrates that no testamentary disposition was intended. Bergman v. Ornbaun, 92 P.2d 654; Wimpey v. Ledford, 177 S.W. 302; Heuler's Estate, 278 P. 1031; Blackwell v. Lee, 15 P.2d 574; Fuhrmann's Will, 244 N.W. 628; Rennie v. Washington Trust, 249 P. 992; Sims v. Brown, 158 S.W. 624. (6) The intention of Hall being plain, unambiguous and undisputed, the rights of respondents to such policies and the proceeds thereof are sustainable as a trust for their benefit, and no element of testamentary disposition is involved. Fendler v. Roy, 58 S.W.2d 459; Chapman v. McIlwrath, 77 Mo. 38; Harris Banking Co. v. Miller, 190 Mo. 640; Geel's Estate, 143 S.W.2d 327; Soulard's Estate, 43 S.W.2d 617; Davis v. Rossi, 34 S.W.2d 8, 326 Mo. 911.