Opinion
Rehearing Denied Feb. 18, 1960.
Hearing Granted March 16, 1960.
Opinion vacated 6 Cal.Rptr. 281.
Elias Mansfield, Los Angeles, Thompson & Colegate, and James M. Wortz, Riverside, for appellant.
Frank W. Doherty and Raymond A. Nelson, Los Angeles, for respondent.
MONROE, Justice pro tem.
The deceased, John C. F. Schultz, died on May 15, 1958. There was offered for probate a will executed by him in 1951. There was also offered for probate by Albert F. Bolz, a friend of the deceased, two instruments dated, respectively, February 1, 1956, and March 22, 1956. These instruments, together, were admitted to probate as the last will and testament of the deceased. Appeal is taken from this order. The first instrument was in the handwriting of the deceased. The evidence was that Mr. Bolz received it through the mail but the record does not reveal whether there was any letter accompanying it. It was headed: 'Copy. Last Will and Testament'. It then provided for gifts of $1 each to several of his relatives and appointed Mr. Bolz as 'Administrator'. It then stated:
'Copy
'All the rest, residue and remainder of my estate, real, personal or mixed, wheresoever situate, of which I may die seized or possessed or to which I may be entitled at the time of my desease, I give, devise and bequeath as follow to wit;
'A--To my good friend Leopold Singewald whom owes me the Sum of $400.00 I will cancel the debt
'B--To my beloved niece Ella (Alke) Ilse Ahrensburg in Holstein near Hamburg, Germany
'C--To my Nephew Hans Ebinger and his Wife in L.A.C
'D--To Mrs. Katie Whittemore 227-So Flower St. in L.A.C
'E--To Tom Nelson--A Farmer in Perris, Calif.
'F--To my good friend Geneva Miller in L.A.C.
'G--To my good friend Henry Goerke
'Hereunto subscribed my Name this first day of February 1-A.D. 1956
'John C. F. Schultz
'Rt. 1-Box 287-Perris, California'
It is to be noted that in this residuary clause several of the amounts of the bequests are left blank. In a letter to Mr. Bolz dated March 22, 1956, and addressed to 'Dear Albert', the deceased wrote at some length concerning property damage which he had suffered by reason of an automobile going out of control and running on to his property and requesting assistance of Mr. Bolz in presenting his claim to an insurance carrier. The letter then stated:
'inclose you find the rest of my Will please fill in on your copy as follows
'A--To my friend Leopold Singewald whom owes me $400.00 for over 5 years already but has always paid the intress--I will cancel that debt in case off my Death.
'B--To my beloved niece Mrs. Ella Ilse Ahrensburg in Holstein Germany $5000.00
'C--To my nephew Hans Ebinger and his wife Ina $1000.00. They live in Los Angeles 7--Calif.
'D--To Mrs. Katie Whittemore $100.00 her Adr. is 227 So. Flower Str. Los Angeles Calif.
'E--To my friend Tom Nelson $100.00 in Perris Calif.
'F--To my friend Geneva Miller in Los Angeles Calif. $100.00 One Hundred Dollars
'G--To my friend Henry Goerke $100.00 One Hundred Do
'All the rest, residue and remainder I do hereby bequeath to Albert F. Bolz 637 Covina Blvd. San Dimas Calif.
'Hereunto subscribed my name this first day of February 1--A.D.1956
'John C. F. Schultz
'Rt. 1-Box 287
'Perris-California'
The court found that these instruments were written with testamentary intent and constituted the last will and testament of the deceased and as such were admitted to probate.
The proponent of the will relied in the court below and relies in this court upon In re Estate of Janes, 18 Cal.2d 512, 116 P.2d 438. In that case there was presented an holographic will complete in form and meeting all the requirements of the statute. The trial court had refused admission of the will to probate because of the fact that there was attached to the will a slip It is to be noted that there is a decided difference between the facts involved in this case and those of the Janes case. Here the writing dated February 1, not only bore the word 'copy' but it was incomplete. The amounts that were filled in as bequests were but nominal and there was no provision for disposition of the bulk of the estate. The letter dated March 22, does not purport to be a will but merely gives information in the body of the letter as to how Mr. Bolz 'will please fill in your copy'. It is in this letter that there is indicated the manner of disposition of the bulk of the estate of decedent.
The real question involved is not whether the writings indicate the manner in which the deceased intended to dispose of his property but the question is whether he intended these instruments to operate as his will. It makes no difference whether the instrument in question be complete in form. It will not constitute a will unless it was intended by the deceased to be his will.
'The question always before the mind of a court is not what the testator should have meant to do, or what words did he mean to use, but what did he mean by the words which he actually used. In cases where doubt arises as to whether the instrument is a will or of some other character, the true test is whether the maker executed the document animus testandi. Without this it cannot be a will. Proof that a party intended to make a disposition of his property similar to or identical with that contained in a certain paper which he has executed does not make such paper his will. No matter what his intentions may have been with respect to the disposition of his estate, if the maker of an instrument did not intend by that particular paper to dispose of his property in the manner in which it could have been disposed by a will, such instrument must be denied probate, no matter how correct it may be as to form and execution, and no matter how clearly it may conform to the intentions of the maker which he had otherwise expressed. 1 Alexander on Wills, §§ 46, 47. In other words, when it is claimed that the intention of a deceased was that a paper should stand for a last will and testament, it must be plainly and satisfactorily apparent that the testator intended the very paper to be his will. Unless it so appears, the paper must be rejected.' In re Estate of Major, 89 Cal.App. 238, at page 241, 264 P. 542, at page 543.
To the same effect see In re Estate of Kisling, 68 Cal.App.2d 163, 167, 156 P.2d 57; In re Estate of Button, 209 Cal. 325, 331, 287 P. 964.
These two writings leave no room for doubt that they were intended merely to notify Mr. Bolz of the contents of a will which the deceased was in the act of preparing, and it is obvious, from the context, that there was no intent that these instruments should themselves constitute the will.
It is important to note that the evidence revealed that a thorough search of the effects of the deceased failed to locate any will of which these writings purport In re Estate of Ross,
In re Estate of Flood,The proponent contends that this presumption should not apply because there is no proof of the existence of the 'original'. To the contrary, the very wording of the writings in question furnishes an indication of the contents of a will which the deceased was then preparing. In view of the fact that over two years elapsed before the death of Mr. Schultz, there is every probability that he destroyed the original will.
Judgment reversed.
GRIFFIN, P.J., and SHEPARD, J., concur.