Ohanneson

I concur. It should be noted, however, that the majority holding here that “Regardless of the language of the allegedly testamentary instrument, extrinsic evidence may be introduced to show that it was not intended by the testator to be effective as a will . . . Since extrinsic evidence is admissible to show the absence of testamentary intention, it does not become inadmissible because it does so by showing another intention,” is irreconcilably inconsistent with the majority holding in Estate of Smith (1948), 31 Cal.2d 563, 568 [ 191 P.2d 413 ], that evidence of “extraneous occurrences and declarations claimed to bear upon the intent to revoke” should not be received, “cannot overcome the valid [on its face] express revocation,” and is “not admissible to show that an express [on its face] revocation clause was not intended to revoke a prior will. ’ ’

There has been suggested no tenable basis for applying an exclusionary rule of evidence to the question of intent arising in the Smith case and a contrary rule to the same question in the case now before us. For the sake of uniformity of decision, either the majority holding of the Smith ease should be squarely overruled or it should…

Contestants appeal from an order admitting a holographic instrument to probate as a codicil to a previously admitted witnessed will. Ruby Sargavak died March 22, 1947. By a formal will drawn by respondent Ohanneson as her attorney and executed July 9, 1945, she left all her property to the appellants. Respondent Mahdesian, as executor under that will, offered it for probate on March 31, 1947. On May 6, 1947, respondent Ohanneson offered the following instrument for probate as a. codicil to that will :

Appellants contested the admission of this instrument on the ground that testatrix did not intend it as a testamentary disposition of her property. They introduced without objection evidence to show that testatrix intended the instrument as an authorization to respondents to eject Mrs. Lillian Shooshan from the testatrix’s house. Respondent Mahdesian testified to declarations of the testatrix that the allegedly dispositive provisions were intended only as a statement that her attorney and her executor were to dispose of her property according to the terms of the will of July 9, 1945. Respondent Ohanneson, as the only proponent of the codicil, offered no contradictory evidence,…

I dissent.

I concur in the opinion of the court that resort may always be had to extrinsic evidence to explain the actual intention *102 with which an apparently testamentary instrument was executed and that the trial court properly admitted such evidence. In my opinion, however, that evidence, unequivocal, uncontradicted, and unimpeached, clearly demonstrates that Mrs. Sargavak did not intend by the letter of September 29, 1946, to direct the testamentary disposition of her property and the letter should not have been admitted to probate.

It is held that since the letter furnishes rational support for the finding of the trial court that it was executed with testamentary intent, the finding must be affirmed on appeal. The cases cited for the proposition that the extrinsic evidence was properly admitted, however, are also authority for the proposition that a finding of testamentary intent contrary to that evidence cannot be upheld even though it is supported by the terms and appearance of the questioned instrument. If the instrument cannot reasonably be found to be testamentary when read alone, there is no need to resort to extrinsic evidence. In most of the cited cases, not only…