Opinion
Rehearing Denied Dec. 23, 1960.
Hearing Granted Jan. 25, 1961.
Opinion vacated 11 Cal.Rptr. 574.
L. C. Smith and Leander W. Pitman, Redding, for contestants-appellants.
Halpin, Halpin & Leep by Jack Halpin, Redding, for petitioner-respondent.
VAN DYKE, Presiding Justice.
This is an appeal from a decree of the Superior Court of Shasta County in the matter of the Estate of Albert Jones, deceased, whereby, construing the decedent's will, it was decreed that, respecting four parcels of real property, the widow of deceased took fee simple title to three, and a life estate in the fourth, with remainder to the decedent's daughters. The daughters appeal, contending that under proper construction of the will the respondent widow took a life estate in all four parcels with remainder interests to them.
Paragraph Fourth of the will reads as follows:
'I hereby give, devise and bequeath unto my said wife, Kate A. Jones, the following described real property and all improvements thereon situated in the County of Shasta, State of California, as follows: My interest in the warehouse at the corner of Tehama and Court Streets, Redding; the warehouse on Gold Street, Redding; the apartment house on Willis Street, Redding; the home near Hatchet Creek, together with the household furniture and fixtures situated thereon, to have and to hold the full use and enjoyment thereof during her natural life, free from rent and from all liability for waste, and my said wife, Kate A. Jones shall have the use, possession, occupancy, The fourth paragraph contains a single sentence. Appellants contend that what we may call the habendum clause, 'to have and to hold the full use and enjoyment thereof during her natural life,' applies to and limits the gift to respondent to a life estate in all four parcels. This construction was rejected in the trial court and it appears that the rejection was based in material part on the punctuation of the sentence. After the description of each of the first three parcels the scrivener inserted a semicolon, whereas only a comma follows the description of the fourth. Webster's New International Dictionary, Second Edition, defines a comma as being, 'A point used in writing and printing to indicate a separation of words, phrases, or clauses from others not closely connected in the structure of the sentence. The comma, though often, as formerly, marking thetorical pauses, is used principally to make clear the grammatical grouping.' A semicolon is defined as, 'A point used in printing and writing chiefly in a co-ordinating function between major sentence elements, separating them with more distinctness than comma or dash.' Respondent's contentions as to the proper construction of the will finds support in these grammatical rules.
The issues presented by the petition of respondent and the declarations of interest of appellants filed in response thereto came on for hearing with a jury called to try the facts. Deeming the will ambiguous, the trial court received evidence of extrinsic facts and circumstances attending its execution. We agree that the will is ambiguous and that it was proper to receive such evidence. However, only two witnesses testified and no substantial conflict is found in that testimony. Notwithstanding and in violation of applicable rules, the construction of the will was submitted to the jury. The parties argued for and against their conflicting constructions. The jury was instructed as to the canons of construction that should guide them. Verdict forms were submitted for the jury's convenience. One read as follows: 'We the jury decide that Albert Jones by his will left to his wife, Kate Jones, a life estate in paragraph four of his will, and upon her death this property goes and vests in his two daughters, share and share alike.' The other read: 'We the jury find the testator, Albert Jones, did intend to give his widow a life estate in the Hatchet Creek real property, furniture, and Fixtures, and give her the complete ownership in the other property described in the will.' The jury adopted the last form. Thereafter the court made and entered its decree which, after reciting the nature of the proceeding, continued: '* * * [A] jury having been empaneled to try the question of fact, and having heard the evidence and been instructed by the court, the jury thereupon * * * rendered the following special verdict: 'We the jury find the testator Albert Jones did intend to give his widow a life estate in the Hatchet Creek real property, furniture and fixtures and give her the complete ownership in the other property described in the will.' * * * Wherefore, in accordance with the law and by reason thereof the court determines the respective rights of the parties as follows: * * *.' The decree thereupon adjudged that respondent took fee simple title in three parcels of real property and a life estate in the fourth, with remainder to the appellants.
In a proceeding such as this, which calls upon the court to construe a will, the substantial issue is one of law and a jury can only pass upon such issues of fact as may be developed by testimony of witnesses as to extraneous circumstances. We quote 'It is a fundamental and indisputable proposition that wherever doubt arises as to the meaning of a will, such doubt is resolved by construction, and that construction is one of law. It is an application of legal rules governing construction, either to the will alone, or to properly admitted facts to explain what the testator meant by the doubtful language. In those cases where extrinsic evidence is permissible, there may be a conflict in the extrinsic evidence itself, in which case the determination of that conflict results in a finding of pure fact. But when the facts are thus found, those facts do not solve the difficulty. They still are to be applied to the written directions of the will for the latter's construction, and that construction still remains a construction at law. In such cases, where the evidence of the facts is in conflict, it is permissible for the court, or for the jury, to find the facts; and those findings, under firmly established principles, will not here be disturbed. But the application to the will itself of the facts found, admitted, or established without conflict presents a question of legal construction, which is as purely a question of law as is a construction of the will without resort to extrinsic evidence. Therefore, if the facts have been found by the court upon conflicting evidence, this court, accepting the findings, will still review the construction of the court in probate and determine whether or no a wrong construction at law has been reached. If the facts are admitted or established without conflict, the justness of the application which the court made of those facts in its construction will equally, as a legal proposition, be the subject of review. Again, it is fundamental that in all cases where extrinsic evidence is admissible to aid in expounding the will the evidence is limited to this single purpose. It is considered for the purpose of explaining and interpreting the language of the will, and is never permitted to show a different intent or a different object from that disclosed, though, perhaps, obscurely, by the language of the will itself.' See Estate of Platt, 21 Cal.2d 343, 131 P.2d 825. See, also, Citizens Utilities Co. v. Wheeler, 156 Cal.App.2d 423, 432, 319 P.2d 763, 769, where, in a case involving the construction of a contract, the court said: 'Appellant correctly states that the legal effect and meaning of a contract or other instrument is ordinarily a question of law; and that even when extrinsic evidence has been received the legal effect and meaning of whichever version of the facts is adopted by the trial court is also a question of law.'
It appears that court and counsel labored under a misapprehension as to the relative functions of court and jury in this proceeding. There was nothing for the jury to pass upon once it appeared, as it did, that, though testimony of extrinsic facts and circumstances had been properly taken, the testimony developed no conflict within itself. At that point the jury should have been discharged and the trial court should have proceeded to put its own construction upon the will as a matter of law. It appears also that the court, deeming itself so bound, accepted the verdict of the jury as conclusive upon the court and framed its decree accordingly; and that we do not have in that decree the court's own construction of the will. The procedure followed was erroneous. The parties were entitled to a construction by the court unaffected by the verdict of the jury which, as we have said, ought not to have been received.
We might treat the decree, notwithstanding the erroneous proceedings that went before, as the trial court's own construction, and, exercising our appellate powers, consider here whether or not this court agrees with that construction. However, Since we are convinced from the whole record that the trial court has not construed the will of decedent, but on the contrary has felt itself bound by the verdict of the jury, the decree appealed from must be reversed and the cause remanded to the trial court with instructions to take proceedings in accordance herewith.
One further issue presented in the briefs should be discussed. Appellants contend that the instructions given by the testator to the attorney who drew the will should have been received in evidence. We think the record shows the trial court acted properly in rejecting the proof offered. Appellants offered to prove by the attorney who drew the will that the decedent had told him that he wanted to give to his wife a life estate in all of the real property described in Paragraph Fourth of the will and that he wanted the remainder interest to go to his daughters, share and share alike; that all of the property involved was his separate property; that he wanted his separate property to go to his children for the reason that his wife had a son and if he were to do otherwise it would funnel his property over into his wife's side; and that the attorney was to draw the will in such manner that this diversion of his property from his descendants, save as interrupted by the wife's life estate, would not happen. It is obvious that this was an attempt to prove the oral statements of the decedent as to his testamentary intentions. The offered testimony was inadmissible under the provisions of section 105 of the Probate Code. Such testimony has been received where the ambiguity to be resolved is latent. Not so where, as here, the ambiguity is patent. Estate of Dominici, 151 Cal. 181, 90 P. 448; Estate of Donnellan, supra; Estate of Womersley, 164 Cal. 85, 127 P. 645; Estate of Greenwald, 19 Cal.App.2d 291, 65 P.2d 70; Estate of Hotaling, 72 Cal.App.2d 848, 165 P.2d 681; 4 Page on Wills, sec. 1625.
The decree is reversed and the caused remanded.
SCHOTTKY and PEEK, JJ., concur.