Opinion
Hearing Granted July 15, 1943.
Appeal from Superior Court, Los Angeles County; Myron Westover, Judge.
Proceeding in the matter of the estate of Luther Bristol, deceased, by Agnes Bristol against Edith Young. From a judgment admitting a will and two codicils to probate, Agnes Bristol appeals.
Affirmed. COUNSEL
Jacob Forst and W. P. Smith, both of Los Angeles, for appellant.
Don Lake and Charles G. Young, both of Los Angeles, for respondent.
OPINION
DORAN, Justice.
This appeal involves the question as to whether there is sufficient evidence to support the findings of fact in a probate proceeding wherein the trial court admitted a will to probate, including as a part thereof an alleged lost codicil. There is no dispute about the will being entitled to probate, nor about a so called first codicil dated July 28, 1939. The will named Agnes Bristol, the widow of deceased, as the executrix. Another codicil denominated by the testator as codicil number two and dated April 1, 1938, was received in evidence but denied probate, its lack of due execution being conceded. There is no dispute over the denial by the court of the probate of this codicil. The controversy results from the admission to probate by the trial court of another codicil dated April 28, 1941, referred to herein as the "lost codicil". Said lost codicil made certain changes in the original will, among which was the elimination of appellant’s name as devisee and as executrix and the substitution in lieu thereof of the name of a daughter, Edith Young, as executrix. The record reveals that the original of this so called lost codicil was not found; but respondent Edith Young produced an unsigned copy thereof and its due execution was established by the testimony of Don Lake, Esq., the attorney who drew the codicil, and by the testimony of Irene Harroun, the secretary who typed it. Other evidence was introduced for the purpose of proving by inference the existence of said codicil at the time of decedent’s death and that the same had never been destroyed.
Appellant objected to the probate of the lost codicil on the grounds: "(1) That said alleged codicil of April 28, 1941, was destroyed by testator. (2) That said alleged codicil of April 28, 1941, was not in existence at the time of decedent’s death. (3) That the objector, Agnes Bristol, is the widow of the said deceased and is entitled to the priority of the appointment under the law."
The court, among other things, found as follows:
"4. That the deceased left a will dated the 1st day of April, 1938, and a codicil to said will dated the 28th day of July, 1939; that the deceased made and executed a codicil (to his will of April 1, 1938, and the codicil of July 28, 1939) on the 28th day of April, 1941, which said codicil has not been found.
"5. The court finds that the deceased never cancelled or destroyed the codicil of April 28, 1941, and said codicil was in existence at the time of his death; that no other wills or codicils were executed by the deceased subsequent to the 1st day of April, 1938; that the will dated April 1, 1938, and the codicil dated July 28, 1939, and the codicil dated April 28, 1941, are the last will and testament of the deceased."
Accordingly, the will and said two codicils were admitted to probate and letters testamentary issued to Edith B. Young.
It is contended by appellant that the so called lost codicil having been last seen in the possession of the decedent and not having been found, there was no substantial evidence to overcome the presumption that it was not in existence at date of decedent’s death and that it was destroyed by the testator with the intention of revoking it; hence the action of the court in admitting the same to probate and the appointment of Edith B. Young as executrix was error.
The evidence reveals that Mr. Don Lake, the attorney who prepared the codicil, testified at length as to the circumstances surrounding its preparation and execution, including the declarations by decedent to him as to the reasons for the codicil in question. Irene Harroun, a stenographer in Mr. Lake’s office identified the carbon copy of the codicil and testified that she had typed it and signed the original as a witness in Mr. Bristol’s presence. Both Mr. Lake and Miss Harroun testified that after the codicil had been duly executed Mr. Bristol, the deceased, put it in his pocket and left. Della Bristol testified on behalf of respondent, among other things, that she arrived in Los Angeles from the north about the 22nd of September; that decedent died on September 30th; that on the day she arrived she had a conversation with appellant Agnes Bristol, at which time Agnes Bristol said that if she could ever get her fingers on the will and the deeds she would tear them all up except Walter’s, (referring to testator’s son). The foregoing recital is brief but serves as an outline of the evidence.
Section 350 of the Probate Code provides: "No will shall be proven as a lost or destroyed will unless proved to have been in existence at the time of the death of the testator, or shown to have been destroyed fraudulently or by public calamity in the lifetime of the testator, without his knowledge * * *."
Appellant relies on a doctrine first enunciated in California in 1921 in Re Estate of Sweetman, 185 Cal. 27, 195 P. 918. There the court held as follows: "A will last seen and known to have been in the possession of the decedent, which cannot be found after his death, will be presumed to have been destroyed by him with the intention of revoking it, since the law always presumes in favor of the innocence of an act, and any other inference would involve a finding of a wrongful or fraudulent destruction of the will by a third person." Later cases followed the Sweetman case, for example, In re Estate of Johnston, 188 Cal. 336, 339, 340, 206 P. 628; In re Estate of Smith, 140 Cal.App. 508, at page 516, 35 P.2d 335. Accordingly, appellant argues that the real question presented by this appeal is whether there is any substantial evidence in the record sufficient to overcome the above stated presumption of law; that if there is substantial evidence the judgment should be affirmed; if there is not, the judgment should be reversed.
Respondent raises no issue as to the validity and virtue of the above presumption but contends in substance and effect that the court’s decision upholding the codicil is supported by sufficient evidence to overcome the presumption.
Incidental to the issue involved, the controversy herein presents an interesting and important question, namely, whether the presumption established as a doctrine in Re Estate of Sweetman, supra, can be promulgated and established by judicial decision in the light of statutory provisions on the same subject. It is at once evident that if the presumption in the Sweetman case is invalid, then the decisions that follow and are based thereon, are also invalid. Said presumption relies for its authority on 14 Encyclopedia of Evidence 440, and the cases therein cited to support the text. It is noteworthy that no California cases are cited.
Section 350 of the Probate Code, supra, imposed upon respondent the burden of proving that the codicil in question was in existence at the time of the death of the testator. No statute imposes the additional burden created by judicial decision in Re Estate of Sweetman, supra, hence the question as to the authority of the courts in effect to legislate on this important requirement in such circumstances is pertinent. What the rule may be in other states is of little assistance in California. The question appears to be settled by the code provisions on the subject, hence the power of the courts to add or detract therefrom is open to serious question.
Section 4 of the Code of Civil Procedure provides as follows: "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice." (Italics added) With relation to the subject of presumptions the Code of Civil Procedure establishes the law as follows, in part, by Section 1959 thereof. "A presumption is a deduction which the law expressly directs to be made from particular facts." (Italics added) In the same chapter is to be found the conclusive presumptions and the presumptions that may be controverted. See the dissenting opinion of Mr. Justice Traynor in Speck v. Sarver, 20 Cal.2d 585, at page 590, 128 P.2d 16. Manifestly the "law " referred to in section 1959 of the Code of Civil Procedure refers to the law as declared by statute. Read in the light of section 4 of the Code of Civil Procedure it can mean nothing else. Therefore it would appear that the courts are without power to "expressly" direct what deductions are to be made from particular facts because the code has established the law in that regard.
As to the presumption in question, Wigmore observes: "There are various other situations in which a retrospectant inference is permissible from the absence of certain results to the absence of certain causes. Most of these raise no doubt of admissibility and are commonly of importance only in the rules of presumption or elsewhere; the chief of these are the INFERENCE from the non-discovery of a will once existing, to the testator’s revocatory destruction of it * * *." 1 Wigmore on Evidence 218, sec. 160 (Emphasis on "inference" supplied) And again: "The revocation of a will by destruction may be INFERRED, of a principle of Relevancy already considered (ante sec. 160), from the fact that it once existed but cannot be found at the testator’s death. Whether this circumstance, with or without others, should create a rule of presumption, or of sufficiency of evidence, has been much DEBATED." 4 Wigmore on Evidence 3569, sec. 2523. (Emphasis supplied, italics included.) Thus it will be seen that a distinction is recognized, and properly so, between an inference and a presumption. And the rule is not accepted by Mr. Wigmore as a presumption.
The only reason given for the rule is that any other inference would involve a wrong to a third person. Just why a third person should be injected into the situation is not clear. If such third person is innocent of any wrong no protection is needed, and, on the other hand, if such third person is in fact guilty of a wrong, then no protection by means of a presumption should be available. Moreover, there is no more reason to suppose that a third party destroyed a will than there is to suppose that a will was actually lost. In any event, it is the court’s duty to determine and carry out the intention of the testator and any concern for the feelings of some third party obviously is irrelevant to the fulfillment of this duty. To allow such anxiety for the feelings of a third party to interfere with the proof of the testator’s intention is unwarranted.
The Constitution provides, with regard to jury trials: "The court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses." Cal.Const. Art. VI, sec. 19.
The presumption in question does more than merely comment on the evidence. It is a specific direction that certain conclusions must be applied to certain facts. In no sense is it a "fair and general comment which a trial judge is now authorized to make". People v. Eudy, 12 Cal.2d 41, 82 P.2d 359, 361. That such a rule of presumption effectively prevents a freedom of decision on questions of fact by either judge or jury is inevitable.
The declaration of Mr. Wigmore to the effect that the revocation of a will by destruction may be inferred, but whether such circumstance should create a rule of presumption has been much debated; the question raised by statutory law and the constitution as well, as to the power of the courts to establish the presumption in question by judicial decision; and the inherent mischievous character of the rule itself as a presumption, together expose its inherent defects and invalidity.
"Disputable inferences or presumptions, while evidence, are evidence the weakest and least satisfactory." So declared the Supreme Court in Savings and Loan Society v. Burnett, 106 Cal. 514, 529, 39 P. 922, 925; and this appraisal has been quoted repeatedly in subsequent decisions. In re Estate of Coolman, 112 Cal.App. 744, 297 P. 593; Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 7, 210 P. 269, 272. The latter case points out that "there seems to be some confusion in the decisions of this state with respect to the extent to which under various circumstances presumptions of law are to be regarded as evidence of facts". The opinion assembles three groups of decisions in support of the premise that confusion exists and then proceeds to "resolve this apparent conflict" by adding a fourth rule. Whether success has attended the effort is doubtful.
There is no mystery about the presumptions and there should be no difficulty in avoiding confusion. Evidence is the means of ascertaining the truth. Code Civ.Proc. sec. 1823. A presumption is declared by law to be evidence, Code Civ. Proc. § 1957, and as such is one of the means of ascertaining the truth. The rules of evidence, which are not complicated, are the product of many years of experience and in a sense are guides for reasoning processes that such experience has found to be safe and reliable. The presumptions, as evidence, enjoy no special distinction and their value manifestly is relative. When a conflict arises between a disputable presumption and other evidence the court or jury, as the case may be, is presented with the "means of ascertaining the truth", and the determination thereof in such circumstances is final. The only possible question on appeal is whether there is evidence of a substantial character sufficient to sustain the finding or conclusion.
As pointed out by Mr. Justice Traynor in Speck v. Sarver, supra, 20 Cal.2d at page 598, 128 P.2d at page 23: "It is time to have done with the confusion and inconsistency engendered by its (the court’s) vacillation between the acceptance and the repudiation of presumptions as evidence."
In connection with consideration of the evidence and the trial court’s findings, it should be emphasized that the rules of evidence are the same in the trial of the within action as any other. The trial judge is the exclusive judge of the weight of the evidence and the credibility of the witnesses. What may appear to be slight evidence to an interested party may appear substantial to the trial judge and in the end, convincing.
As heretofore noted, the record reveals the sole issue presented for determination to the trial court was whether the codicil in question was in existence at the time of the testator’s death. The question on appeal is not, as contended for by appellant, whether there is any substantial evidence to overcome the presumption hereinbefore considered, but whether there is any evidence of a substantial character to support the findings of the trial court. Without going into further detail as to the evidence adduced at the trial on this issue it is sufficient to note that the record reveals it to be abundantly adequate to meet all requirements on appeal in this regard.
There are no errors in the record and for the foregoing reasons the judgment is affirmed.
YORK, P. J., and WHITE, J., concur.