Purcell v. Finkler

This appeal is taken by Christina A. Finkler, a half-sister of the deceased, and by Sumner J. Waite et al., heirs at law of said Henry C. Finkler, from an order made and entered by the Superior Court of the County of San Mateo in the above-entitled matter, directing that final distribution of the residue of the estate of decedent be made to M. J. Purcell and B. Grant Taylor, the executors and beneficiaries named in his will, excepting therefrom small sums of money ordered distributed to certain heirs at law as in said will provided.

The question as to what part, if any, of said document filed for probate and written wholly by the decedent was entitled to admission to probate as the holographic will of decedent was considered at length in the matter of the Estate of Finkler, 3 Cal. (2d) 584 [ 46 Pac. (2d) 149 ], Every question urged upon the instant appeal was brought to the attention of this court upon the disposition of that appeal.

The document admitted to probate was written on a single sheet of paper, and as originally prepared reads as follows:

Some time subsequent to April 21, 1930, the day on which said will was written, certain changes were made in it by the testator by…

I dissent.

This court, in its prior opinion herein, purported to interpret the documents before it and gave to those documents an interpretation different from that given by the trial court. Everything that was said by this court on this issue in its prior opinion was clear dicta and the trial court should not have held that it was bound thereby. The rule is well settled that, on the probate of a will, questions of interpretation do not arise, except in certain unusual situations, of which the instant case is not one. The rule enunciated in the majority opinion, by permitting a construction of a will prior to its admission to probate, not only disturbs a well settled principle of law but, in my opinion, tends to upset the orderly handling of the probate of an estate.

This appeal is taken by Christina A. Finkler, a half-sister of the deceased, and by Sumner J. Waite et al., heirs at law of said Henry C. Finkler, from an order made and entered by the Superior Court of the County of San Mateo in the above-entitled matter, directing that final distribution of the residue of the estate of decedent be made to M. J. Purcell and B. Grant Taylor, the executors and beneficiaries named in his will, excepting therefrom small sums of money ordered distributed to certain heirs at law as in said will provided.

The question as to what part, if any, of said document filed for probate and written wholly by the decedent was entitled to admission to probate as the holographic will of decedent was considered at length in the matter of the Estate of Finkler, 3 Cal.2d 584 [46 PaCal.2d 149]. Every question urged upon the instant appeal was brought to the attention of this court upon the disposition of that appeal.

The document admitted to probate was written on a single sheet of paper, and as originally prepared reads as follows:

"San Francisco, Cal"

"April 21, 1930"

"All my property (money or realty) I leave to Mike Purcell and B. Grant Taylor…