Citizens National Trust & Savings Bank v. Blank , 137 Cal. App. 2d 555 ( 1955 )

DORAN, J.

This is an appeal by Gertrude Blank and Bernard Hoffman, children of the decedent, from a judgment admitting to probate a lost will and lost codicil thereto, and a second codicil to said will. The petition for probate, filed by the respondent Citizens National Trust and Savings Bank, named executor, alleges the due execution of the instruments in question; that same had become lost or destroyed and could not be found after diligent search, and the usual jurisdictional facts. It further alleges due execution of the second codicil and that said codicil expressly republishes and reaffirms the previous will and codicil.

Under the terms of the will and codicils, testator bequeathes $1,000 to each of the two children, $5,000 to friends, Mr. and Mrs. Art McCooey, $100 per month out of income to Sarah Jane Shaffer. The residue of the estate is given to the Los Angeles Unit Shrine Crippled Children’s Hospital, Inc., and in case any part of the hospital bequest should lapse or fail, then to Ernest L. Hurst, recorder of Al Malaikah Temple of the Shrine.

Objections were filed by the two children on the ground that the second codicil was not subscribed or acknowledged by decedent in the presence of the attesting witnesses, present at the same time, that decedent did not declare “that it was his will or a codicil to his will”; that the witnesses did not sign the instrument at decedent’s request and in his presence; that “no exact date of purported subscription. acknowledgment or attestation appears in the instrument, ’ ’ the codicil being dated “June -, 1953”; and that the second codicil is ineffective because the original will and first codicil are not admissible.

Contestants’ objections to the admission of the original will and first codicil were and are that the same were “not entitled to be admitted to probate as lost or destroyed instruments pursuant to the provisions of section 350 of the Probate Code of California, since it does not appear that said will and codicil were actually in existence at the time of decedent’s death, or destroyed fraudulently or by public calamity in the lifetime of the decedent.”

After a three-day hearing, the trial court found that the contestants’ material allegations were not true except that the second codicil “was executed in June 1953 on or about the 16th day thereof but that the exact date of said execution is not set forth in said codicil.”

It was further found that the decedent had never revoked the will or first codicil “which came into the possession and custody of decedent at the respective dates thereof and remained in his possession and custody continuously thereafter until some time prior to his death; that it is true that no person other than decedent saw said will and first codicil at any time after March 28, 1950; that it is true that decedent rented a safe deposit box from Citizens National Trust and Savings Bank of Los Angeles and made nine entries into said safe deposit box in the year 1950, two entries in 1951, one entry in 1952, and one entry February 2, 1953, and that upon decedent’s death neither said will or codicil were found in said safe deposit box. The court finds that it is true that said will and first codicil were in existence at the time of decedent’s death and have either not been found or have been lost or destroyed by some person other than decedent.”

It is appellants’ contention that “For lack of any evidence that the will of March 14, 1950 and codicil of March 28, 1950 were in existence when the maker died on November 27, 1953, these instruments were not admissible to probate under Section 350 of the Probate Code. The second codicil falls with the missing will and first codicil; or independently, because not executed in compliance with section 50 of the Probate Code. Accordingly, the judgment of the trial court should be reversed.”

The appellants’ position is untenable. From a partisan consideration of the record appellants have sought to draw certain conclusions and inferences contrary to those adopted by the trial court. The rule of appellate review is, however, directly opposed to this procedure where the record discloses substantial evidence in support of the trial court’s findings. That the record in the present litigation abundantly sustains the findings and judgment cannot well be doubted.

According to the testimony of Attorney Ritter, the testator, on March 10, 1950, went voluntarily to the attorney’s office and expressed a wish to leave the bulk of the property to the Shrine Crippled Childrens Hospital. The testator mentioned the two children who are appellants herein, but not the fact that a former wife was still living. After conference with the attorney the will was drawn and executed by Hoffman on March 14, 1950.

On March 20, 1950, Hoffman again went to the attorney’s office for advice as to the charitable bequests, and directed the drafting of a codicil which provided that if any part of the bequest to the Childrens Hospital should fail, then the same should go to the recorder of Shrine, Al Malaikah Temple as an individual. Such a codicil was drawn and executed by Hoffman on March 27, 1950. Both in the case of the will and this codicil, the decedent was given the original and a carbon copy, Attorney Ritter retaining another carbon copy. Neither Ritter nor the secretary, who were the witnesses, ever saw the executed copies after March 28, 1950.

On June 12, 1953, Attorney Ritter was requested to visit Hoffman, then a patient at La Vina Sanitarium in Altadena, and did so, talking along the office carbon copies of the will and first codicil. Ritter testified that Hoffman “wanted me to be sure and to promise him that I would see that the property was left and distributed in the way which his will indicated.” The attorney mentioned each item in the will and Hoffman stated that no change was desired except that a $5,000 bequest to Christ Mission of New York City should be stricken out and that sum given to “a couple of friends who have been very good to me by the name of McCooey.” As to the rest of the will, Hoffman said: “I want that the way it is left.” Likewise, as to the first codicil, decedent said: “That is just the way I want it and I’m counting on you to see that my wishes are carried out.”

The second codicil, just mentioned, was found among the decedent’s papers and on its face appears to be regular. There was no question as to the signatures of either the testator or the witnesses. The original will and first codicil were not found. The second codicil was not executed by Hoffman in the presence of the attorney, but was later signed by the testator on "June-, 1953,” as the instrument states, and bears the signatures of two nurses as attesting witnesses. It is claimed by appellants that the two witnesses did not sign at the same time but separately entered the room for that purpose.

Grace L. Works, one of the nurses witnessing the codicil, testified that the decedent was in bed at the time and the codicil was on a cabinet nearby; that Hoffman “asked me if I would be willing to sign this. It was a codicil to his will”; that decedent then signed the paper in the witness’ presence and that the other witness was not then present but came into the room two or three minutes later; that testator asked Mrs. Works to find another witness, whereupon, “I stepped to the door, Mrs. Krone was in the hallway, and I called to her and she came over to me and I said, ‘Mr. Hoffman wants to see you; he wants you to sign a paper’.”

Mrs. Krone then walked over to the decedent, and then returned to Mrs. Works and said, “Its a will—he wants me to sign his will. Is it all right?” whereupon Mrs. Works said, “Yes, it is all right. I have signed it.” Mrs. Krone then witnessed the paper. At that time Mrs. Works was standing in the doorway which was then open, and Hoffman’s bed was about 5 feet from the door.

The testimony of Mrs. Krone was substantially similar, but to the effect that the door “was just open a short distance, ’ ’ and that Mrs. Works “was about four or five feet from me down the hall, right catty-corner from the door,” or about 9 feet from the bed. Appellants contend that “the testimony of Mrs. Works and Mrs. Krone is replete with irreconcilable contradictions and inherent falsities,” and that the evidence shows that the second codicil was not executed in compliance with the statutory requirements.

As said in Estate of Emden, 87 Cal.App.2d 115, 120 [196 P.2d 627], “whether or not a will has been executed in accordance with the statutory requirements is a question of fact and the trial court’s determination on that issue cannot be overturned unless it is without support in the evidence.” Such is the situation in the instant case.

An examination of the eases dealing with the subject indicates judicial approval of a liberal and practical interpretation of the statutory provisions requiring a testamentary instrument to be executed by the testator in the “presence” of two attesting witnesses who shall sign the will in the “presence” of the testator. As stated in Estate of Tracy, 80 Cal. App.2d 782 [182 P.2d 336], “ ‘Presence’ is defined in Webster’s New International Dictionary, second edition, 1939, page 1955, thus-. ‘The part of space within one’s ken, call, influence, etc.; immediate nearness or vicinity of one; proximity’.” The same opinion notes that “In a number of decisions where the meaning of the word ‘presence’ has arisen in connection with the execution of wills, the courts have adopted what is known as the ‘ conscious presence rule. ’ ’ ’

In Estate of Miner, 105 Cal.App. 593 [288 P. 120], quoting from the headnote, where “the first witness was in the same or an adjoining room with the door open during all the time the second witness was present, and heard and saw everything that was said or occurred between the testatrix and the second witness with the exception that she did not see the latter sign, the conduct of the testatrix could not be construed otherwise than as a declaration to the attesting witnesses ‘present at the same time’, that the instrument was her will.”

So, also, in Estate of Jacobs, 24 Cal.App.2d 649 [76 P.2d 128], a similar rule of liberal construction was followed, and “the trial court was justified in finding the due execution of the will; and . . . was not compelled to accept as true the testimony of one of the beneficiaries, which was slightly at variance with that of the other witness, as to where the latter was standing while the doctor was writing and reading the will.”

Prom these and other cases, the so-called “one transaction” and “conscious presence” tests have been applied with salutary and practical results. In the present ease, the testator’s signing of the document and indication of desire and intention to have the witnesses attest it as a will, shortly followed by the actual signing by the two witnesses, as hereinbefore set forth, constitute but a single transaction. At most, the witnesses and the testator were separated by only a few feet and perhaps by a partly closed door; this was nothing if not within the testator’s “conscious presence.”

Viewing the evidence as an entirety, and in the light most favorable to the trial court’s findings, it is true, as stated in respondents’ brief, that “testator at all times referred to his will as being in existence and at no time made any indication of a desire to revoke or destroy it. In his last codicil, which was executed by him in June, 1953, he declared over his signature that he expressly reaffirmed and republished the provisions of his previous will and codicil. ... So also in October, 1953, shortly before his death, he again referred to his will and requested his attorney to see that his wishes should be carried out in that regard. There is nowhere in the record any evidence to the contrary.”

It is not known what happened to the original, executed drafts of the will and first codicil, but the record affords substantial evidence in support of the trial court’s finding “that said will and first codicil were in existence at the time of decedent’s death and have either not been found or have been lost or destroyed by some person other than decedent.” To require more than this would be to demand the impossible. There is no question as to the authenticity of the carbon copies of these instruments, nor that, with the executed second codicil, these documents represent the testator’s testamentary wishes. Appellants ’ contentions are without merit.

The judgment is affirmed.

White, P. J., concurred.