Opinion
As Modified on Denial of Rehearing March 29, 1949.
Subsequent opinion 210 P.2d 697.
Probate Code Section 229.
Appeal from Superior Court, Los Angeles County; Frank C. Collier, Judge.
Proceeding in the matter of the estate of Nellie Dumas, deceased, wherein Mrs. J. H. Mehl and Mrs. Walter J. Niederer filed petition for probate of purported last will of deceased, opposed by Kenneth Dumas and others. From an order admitting to probate the purported last will of deceased, Kenneth Dumas and others appealed. The appeal was opposed by petitioners and by the Bank of America National Trust & Savings Association, special administrator.
Order reversed with instruction. COUNSEL
Dunlap, Holmes, Ross & Woodson, of Pasadena, for contestants and appellants.
E. L. Searle, of Los Angeles, for petitioners and respondents.
OPINION
MOORE, Presiding Justice.
Contestants appeal on the judgment roll from an order admitting to probate the purported last will of Nellie Dumas.
The papers admitted as constituting such will are three unnumbered sheets of paper entirely in the handwriting of decedent. The sheet bearing a date and the signature of the testatrix is referred to as ‘page 1.’ It contains also the conventional exordium of the ordinary will. It made no attempt to specify bequests or legatees notwithstanding its declaration that the ‘following bequests are to be given to my friends herein named.’ Its only useful provision was the designation of executors. It closed with the following: ‘In testimony I set my name this 20th day of January, 1935. Signed Nellie Dumas.’ Neither page 2 nor page 3 contains a date. Each contains only a list of potential beneficiaries and legacies. The signature of decedent is at the bottom of page 3. The three sheets were found folded together in a manila envelope after decedent’s death.
Inasmuch as this is an appeal on the judgment roll alone, the sole question presented is whether the findings support the order admitting the three papers to probate. A consideration of all the findings is not essential to a correct decision. A review of a portion thereof amply demonstrates prejudicial error. To this end the following findings are pertinent:
‘The first page of said offered will was written by said decedent on or about January 20, 1935. * * *’
‘The second and third pages of said offered will were written by said decedent at least nine (9) years after January 20, 1935, and at an unknown time or times subsequent to April, 1944. * * *’
‘The said second page is neither dated nor signed. That the said third page is signed by Nellie Dumas but is not dated.’
‘The testatrix adopted as the date of said will the date ‘Jany 20th 1935’ previously written in the will on page one thereof.’
‘No witness observed the writing of any part of said document.’
After decedent’s death ‘said offered will was found folded as a unit in said manila envelope, sealed * * * in the safe deposit box of said decedent * * * page one, page two and page three * * * were found folded as a unit * * * not fastened together by any mechanical means other than being folded as a unit.’
It is apparent from inspection that page 1 dated and signed by the testatrix meets all the requisites of a holographic instrument even though it makes no disposition of property. In re Douglas’ Estate, 303 Pa. 227, 154 A. 376. It is just as apparent that page 2 by itself wholly fails to meet these requirements since it is neither dated nor signed. Page 3 standing alone is deficient in that it is not dated, although signed. Neither do pages 2 and 3 considered together supply the essential requirements. Since pages 2 and 3 were written nine years after page 1 and their invalidity as holographic testamentary documents, when viewed independently of page 1, is evident, it follows that their vitality, if any, must be drawn from page 1. But this gap in time must be bridged by a legal principle more substantial than that implied by the conclusion of the trial court, to wit, ‘said will is one continuous instrument, and is a single, homogeneous, holographic document.’ Such a conclusion is not substantiated by a finding that decedent ‘adopted’ a date used nine years previously in drafting page 1.
Respondents dared not suggest that the doctrine of incorporation by reference is applicable for when page 1 was written pages 2 and 3 were not yet in existence. In re Estate of Bauer, 51 Cal.App.2d 636, 638, 124 P.2d 630; In re Estate of Wunderle, 30 Cal.2d 274, 281, 181 P.2d 874; In re Shillaber’s Estate, 74 Cal. 144, 15 P. 453, 5 Am.St.Rep. 433. Neither could pages 2 and 3 be said to incorporate page 1 by reference since on neither is there a reference to page 1. Moreover, pages 2 and 3 viewed separately or together do not satisfy the requisites of a holographic testament.
Under the rule of integration a will may be written on several sheets of paper provided all the sheets are present at the time of execution. In re Estate of Merryfield, 167 Cal. 729, 731, 141 P. 259. Pages 2 and 3 found with page 1 could not have been integrated therewith because they were not in existence when page 1 was executed. Assuming that decedent when pages 2 and 3 were written intended to integrate page 1 with them— such attempted integration failed because the two pages written at an unknown time do not measure up to the statutory requirements of a holographic will. Probate Code, sec. 53. While a finding is of paramount importance to the fortunes of a judgment under attack, yet it derives no divinity. It cannot run counter to facts established by other findings. The finding that the testatrix ‘adopted’ an earlier date in the execution of the undated pages does not even tend to validate them. Even though decedent had expressly entertained the wish to adopt the date on which she had written page 1, such a desire could not have been effectuated because undated writings have no efficacy as holographic wills. In re Estate of Bauer, 51 Cal.App.2d 636, 637, 124 P.2d 630. Neither can pages 2 and 3 be wedged in as a codicil to page 1. A codicil as such must be executed with the same formalities as a will. Probate Code, sec. 74. Since pages 2 and 3 are not dated they do not comply with the statutory requisites, Probate Code, sec. 53, and the order admitting them to probate should be reversed unless for other considerations respondents’ contentions must be sustained.
Respondents contend that (1) the issue of the invalidity of the will by reason of the nullity of pages 2 and 3 was not raised in the court below; (2) the ‘opposition’ merely recited the evidentiary facts; (3) such form of pleading does not constitute a legal opposition to pages 2 and 3 as a part of a single, continuous testamentary instrument with page 1; and (4) therefore, since the issue was not raised in the trial court it cannot be presented on appeal. The implication is that the alleged facts should have been followed by a legal conclusion or by an argumentative statement to raise an ‘issue.’
Such a contention if needed would lead the court into error. The contestants alleged in their amended opposition to petition for probate that: ‘(3) * * * In the absence of valid testamentary disposition contestants are the persons entitled to succeed to the estate of said decedent under the provisions of section 229 of the Probate Code.’* ‘(4) Said alleged will dated January 20, 1935, consists of three separate pages in the handwriting of said decedent. The first page was written on or about January 20, 1935, and bears a date and a signature. The second page was written approximately ten years later and bears no date nor signature. The third page was written on or about the time of the second page and bears a signature but no date. The second and third pages were not in existence when the first page was written.’
The filing of the ‘amended opposition’ created an adversary proceeding. In re Estate of Relph, 192 Cal. 451, 459, 221 P. 361, which could be resolved only by an order of the court based either upon the statutory insufficiency of the offered documents or upon proof or disproof of the allegations of the opposition. Not even the failure of a complaint to state a cause of action is fatal to a judgment in plaintiff’s favor unless the appellant can show that the defect in the pleading resulted in a miscarriage of justice. Drullinger v. Erskine, 71 Cal.App.2d 492, 497, 163 P.2d 48. Inasmuch as the first above equoted findings verify appellants’ factual allegations the court erroneously concluded that the three pages are ‘a single, homogeneous, holographic document,’ and the order admitting them to probate was an irremediable error.
The authorities cited by respondent (In re Kile, 72 Cal. 131, 13 P. 320; In re Estate of Cartery, 56 Cal. 470; In re Estate of Relph, supra; In re Estate of Stone, 59 Cal.App.2d 263, 138 P.2d 710; In re Estate of Latour, 140 Cal. 414, 73 P. 1070, 74 P. 441) in support of its thesis that no issue was presented by contestants’ paragraph 4 are beside the point. In view of the uniform adherence for 99 years to the doctrine that a party on appeal cannot for the first time challenge an adverse pleading as formally insufficient, Clayton v. West, 2 Cal. 381; Christensen v. Jessen, 5 Cal.Unrep. 45, 40 P. 747; Haines v. Stilwell, 5 Cal.Unrep. 27, 40 P. 332; Greiss v. State Investment and Insurance Company, 98 Cal. 241, 244, 33 P. 195; Howland v. Oakland Consolidated Street Railway Company, 110 Cal. 513, 520, 42 P. 983; Drullinger v. Erskine, supra; Grimes v. Nicholson, supra, it would be a grave error for this court now to depart from so salutary a rule. Because of the palpable vices of pages 2 and 3 they constitute neither a codicil nor a part of the hologrphic will contained in page 1. Since the latter comports with the statute, Prob.Code, sec. 53; In re Carpenter’s Estate, 172 Cal. 268, 269, 156 P. 464, L.R.A.1916E, 498, providing for the probate of holographic wills, the order appealed from is correct in so far as it admits page 1 to probate.
The order is reversed with instruction to admit to probate only page 1 as the last will and testament of Nellie Dumas.
McCOMB and WILSON, JJ., concur.
‘If the decedent leaves neither spouse nor issue, and the estate or any portion thereof was separate property of a previously deceased spouse, and came to the decedent from such spouse by gift, descent, devise or bequest, or became vested in the decedent on the death of such spouse by right of survivorship in a homestead or in a joint tenancy between such spouse and the decedent, such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead, in equal shares to the brothers and sisters of the deceased spouse and to their descendants by right of representation.’