ESTATE OF RUSSELL

69 Cal. 2d 200, 444 R2d 353, 70 Cal. Reptr. 561 (1963)



Procedure: APPEAL from a judgment of the Superior Court of San Diego County denying an heir-at-law a claim to one-half of a residuary estate. Byron F. Lindsley, Judge. Reversed with directions.

Facts: Testatrix executed a valid holographic will, leaving the residue of her estate to Quinn (D), and to Roxy Russell. Quinn was a friend of testatrix. Roxy Russell was a dog which was alive at the time the will was executed, but which predeceased testatrix. The will provided a specific bequest to testatrix's niece and sole heir at law (P). P claimed that the bequest to the dog was invalid, and that, as testatrix's heir, she was entitled to half of the estate. D was permitted to introduce evidence regarding testatrix's intent to leave her estate to D, and that she intended for D to care for the dog. The probate court found that D was the residual taker under the will, and construed the bequest to the dog as merely reflecting testatrix's intent that D care for the dog.

Issue: Does a void gift to a residuary beneficiary cause the property which is the subject thereof to pass under the laws of intestate succession?

Holding: (Sullivan, J.) Yes. Georgia's (P) position before us may be summarized thusly: That the gift of one-half of the residue of the estate to Thelma's dog was clear and unambiguous; that such gift was void and the property subject thereof passed to Georgia (P) under the laws of intestate succession; and that the court erred in admitting the extrinsic evidence offered by Quinn (D) but that in any event the uncontradicted evidence in the record did not cure the invalidity of the gift. When the language of the will is ambiguous or uncertain, resort may be had to extrinsic evidence in order to ascertain the intention of the testator. We have said that extrinsic evidence is admissible to explain any an^iguity which does not so appear. A latent ambiguity is one which is not apparent on the face of the will but is disclosed by some fact collateral to it. Extrinsic evidence always may be introduced initially in order to show that under the circumstances of a particular case the seemingly clear language of a will describing either the subject of or the object of the gift actually embodies a latent ambiguity for it is only by the introduction of extrinsic evidence that the existence of such an ambiguity can be shown. Once shown, such ambiguity may be resolved by extrinsic evidence. A patent ambiguity is an uncertainty which appears on the face of the will. When an uncertainty arises upon the face of a will as to the meaning of any of its provisions, the testator's intent is to be ascertained from the words of the will, but the circumstances of the execution thereof may be taken into consideration, excluding the ors* declarations of the testator as to his intentions.

Rule: Extrinsic evidence is admissible to explain any ambiguity arising on the face of a will, or to resolve a latent ambiguity which does not so appear.

Analysis: Extrinsic evidence of the circumstances under which a will is made (except evidence expressly excluded by statute) may be considered by the court in ascertaining what the testator meant by the words used in the will. If, in light of such extrinsic evidence, the provisions of the will are reasonably susceptible of two or more meanings, an uncertainty arises on the face of the will and extrinsic evidence relevant to prove any of such meanings is admissible. If, on the other hand, in the light of such extrinsic evidence, the provisions of the will are not reasonably susceptible of two or more meanings, there is no uncertainty arising on the face of the will and any proffered evidence attempting to show an intention different from that expressed by the words therein, is inadmissible.