Estate of Smith

This is an appeal by contestants from a judgment admitting a will to probate.

The facts are not in dispute. The questions presented concern the legal effect of an alleged revocation of the will and the correctness of the court’s ruling admitting evidence over objection of the testatrix’ declarations bearing upon her revocatory intent.

On July 22, 1942, the decedent, then about 58 years of age and describing herself as a widow without descendants, executed a duly attested typewritten document consisting of two pages which she declared to be her last will and testament. By this instrument she purported to leave her entire estate to Pomona College to establish the Katherine Allen Smith Scholarship Fund, and to appoint Ernest E. Jones, treasurer of the college, as executor. She deposited the executed will with her attorney and retained in her own possession an unexecuted carbon copy. She died on January 5, 1946, without recalling the executed document from her attorney’s posses *565 sion and without mating another will. After her death there was found among her effects the unexecuted carbon copy of her will but with writing across the face of each page. Obliquely across the first…

I dissent. The majority opinion is essentially based on the statement that “The facts are not in dispute. ’ ’ But according to the record as I view it the facts are in dispute.

The crucial question in the case is whether the decedent executed the alleged revocatory instrument with intent to effect revocation of the will of July 22, 1942. Without such intent the later writing would be wholly ineffective. Since the decedent alone could have given direct evidence of her intent, and since her lips are stilled, resolution of the question must depend upon indirect or circumstantial evidence or upon rules of law as to- the burden of proof. Since the due execution of the will was established the burden was upon contestants to prove the animus revocandi of the testatrix. The evidence upon this subject is in substantial conflict, at least in relation to the inferences to be drawn from the circumstances shown. An inference, of course, is evidence. (Code Civ. Proc., § 1957.)

*570 The evidence on the issue in question is conflicting in the following respects: An intent to revoke the will of July 22, 1942, is inferable from the very writing by decedent of the language used in the claimed…

This is an appeal by contestants from a judgment admitting a will to probate.

The facts are not in dispute. The questions presented concern the legal effect of an alleged revocation of the will and the correctness of the court's ruling admitting evidence over objection of the testatrix' declarations bearing upon her revocatory intent.

On July 22, 1942, the decedent, then about 58 years of age and describing herself as a widow without descendants, executed a duly attested typewritten document consisting of two pages which she declared to be her last will and testament. By this instrument she purported to leave her entire estate to Pomona College to establish the Katherine Allen Smith Scholarship Fund, and to appoint Ernest E. Jones, treasurer of the college, as executor. She deposited the executed will with her attorney and retained in her own possession an unexecuted carbon copy. She died on January 5, 1946, without recalling the executed document from her attorney's possession and without making another will. After her death there was found among her effects the unexecuted carbon copy of her will but with writing across the face of each page. Obliquely across the…