In the Matter of the Estate of ELIZABETH BRADY MOELLER, Deceased. JOHN MAHER et al., Respondents, v. LAIOGHIS HOSPITAL AND HOMES COMMITTEE OF PORTLAIOGHIS et al., Appellants, 199 Cal. 705

CURTIS, J. The deceased, Elizabeth Brady Moeller, died in the city and county of San Francisco on the sixth day of November, 1921. She left what purported to be a holographic will written on both sides of a single sheet of paper.

On one side thereof was written the following: “Alameda, April the 22 1907 What ever is left after My Death and Buirel goes to My Nephew Peter Brady of Dublin Ireland Son of My Brother Peter Brady Who Belonged to the 48 Regement of the English Army enlisted at the Time of the Crimes War served 21 years and died in Dublin leaving one son everything goes to him Elizabeth Brady Moeller.” The reverse side of said sheet of paper contained the following writing: “if My Nephew is Not Living it goes to Mount Mellish Union Workhouse where I was take care of when i was young and helpless in the Poor House Queens county Ireland.

Elizabeth Brady Moeller.” There is no question but that all of the writing upon said sheet of paper was that of deceased.

This paper was filed in the office of the clerk of the superior court of said city and county of San Francisco together with the petition of the public administrator of said city and county “praying for admission to probate of a certain document dated the 22nd day of April, 1907 . . . purporting to be the last will and testament of Elizabeth Brady Moeller, deceased.” Thereafter, and on the eighth day of December, 1921, said superior court made an order by which it was “ordered, adjudged and decreed that said document filed herein, purporting to be the last will and testament of Elizabeth Brady Moeller, alias, deceased, be admitted to probate as and for the last will and testament of said . . . deceased.” No contest was ever filed to the probate of said will, either before or after the order admitting same to probate.

Upon the hearing of the petition for distribution evidence was admitted showing that Peter Brady, named in said will as a devisee thereunder, had died prior to the death of deceased. It was further proven upon said hearing that the respondents herein were her sole heirs at law, being children of her deceased brother, who died prior to her death.

Evidence was also introduced at the hearing of the petition for distribution of a handwriting expert, who testified that the writing upon the reverse side of the sheet of paper upon which the will was written was later in date than the writing upon the other side, or first page, of said paper; and, basing a finding upon this evidence, the court found that the writing upon the reverse side of said paper did not constitute a legal codicil, or a legal will, or a legal documentary disposition of any kind.

This finding was predicated upon the contention that the second page, having been written at a later date, and, therefore, at a different time than that on which the first page was written, and being without date, failed to meet the requirements of the statute defining a holographic will. The writing on the second page was accordingly held to be no part of the will of said deceased, and to be invalid as a testamentary disposition.

The court further found that “there is not and never was any person, firm, entity, body, or corporation by the name or title of Mount Mellish Union Workhouse, or bearing any similar name or title, capable under the law of taking by will any property of the said decedent.” The decree of distribution based upon these findings distributed all the property of said deceased to the respondents herein as the heirs at law of said deceased. Prom this decree the Laioghis Hospital and Homes Committee of Portlaioghis has appealed.

The first contention of appellant is that the last will and testament of said decedent was the entire document filed in said court, consisting of the writing on the front and reverse sides of said paper, and that by the order admitting the will of said deceased to probate this entire document was the instrument intended and designated in said order and which was ordered and decreed therein to be the last will and testament of said decedent.

Appellant accordingly contends that as no contest of said will was ever filed, the order admitting it to probate became final and binding upon all parties affected by said will and that the court was without any power thereafter to admit evidence upon the hearing of the petition for distribution or at any other time to show that the writing on the reverse side of the paper was written at a different time than that on which the first page thereof had been written and accordingly was invalid on account of the failure of the testatrix to date the waiting on the reverse side of-said paper.

We will assume that if the writing on the reverse side of the paper had been written at a different date than that on the first page, and that the latter bore no date, then it was fatally defective as an attempt to make a testamentary disposition of property. The first question, therefore, to determine is what document was admitted to probate as the last will and testament of said deceased. Was it the first page of said paper or was it the whole document containing not only what was written on the first page, but also what was written on the reverse side of said paper?

Neither the petition for probate of the will nor the certificate of the proof and facts, found as required by

section 1317, of the Code of Civil Procedure, are contained in the record on appeal. The order admitting the will to probate, however, contains certain recitals and other language which, we think in themselves are determinative of the question here involved. In the first place the order admitting the will to probate recites that “The petition of W. J.

Hynes, etc., praying for the admission to probate of a certain document, dated the 22nd day of April, 1907, and filed in this court, purporting to be the last will and testament of Elizabeth Brady Moeller, alias deceased.” And again we find in said order that “the court hereby finds the fact to be, that said document is entirely written, dated and signed by the hand of the said Elizabeth Brady Moeller herself,” and finally it is decreed in said order “that said document filed herein, purporting to be the last will and testament of said Elizabeth Brady Moeller, alias, deceased, be admitted to probate as and for the last will and testament of said” deceased.

The document presumably at least referred to in said order must have been the entire instrument, including the writing on the first and second pages of the paper before referred to. Had the court intended to limit said order to any particular portion of said document, or had the court intended to designate any portion of said paper as not being a part of the last will of said decedent, wo would expect some reference to such intention in the order itself. Finding none, we must conclude that the court by said order admitted the entire document to probate as the last will of said deceased.

We are somewhat confirmed in this

interpretation of said order by the action of the court admitting at the hearing of the petition for distribution evidence of the handwriting expert to the effect that the writing upon the reverse side of said paper was written at a later date than that on the first page thereof. Had the court considered said order as only admitting to probate the writing on the first page of said paper, then it would not have been necessary to have attempted to have shown on the hearing of the petition for distribution the illegality of the writing on the reverse side of said paper.

By the admission of said testimony the probate court unquestionably considered that the whole document had been admitted to probate as the last will of said deceased.

While we are nob bound by the construction which the court placed upon its own order, yet when the same judge who signed the order admitting the will to probate thereafter admitted evidence for the purpose of showing that a portion of a document on file in said court, and claimed to be the last will, was illegal on account of its defective execution, we must conclude that the trial judge of said court considered that the alleged illegal portion thereof had been in the first instance admitted to probate as a part of the last will of said deceased.

We must assume that the judge of the probate court knew better than anyone else what document he had in mind when he signed the order admitting it to probate as the last will of said deceased, and it is not unreasonable to conclude that when he later permitted evidence to be introduced which tended to invalidate a portion of said document that he considered that said document as a whole had been admitted to probate as the will of said deceased by his previous order.

We think it, therefore, sufficiently apparent from the record before us that the document admitted to probate as the last will of said deceased was the entire writing of said deceased found on either side of the paper on file in the probate court.

As the order admitting the same to probate was never appealed ■ from, and no contest was ever filed to said will, said order became final. (Estate of Parsons, 196 Cal. 294 [237 Pac. 744].) We think it follows without the necessity of any argument that the attempt to show at the hearing of the petition for distribution that the writing on the reverse side of said paper was executed at a later date than the writing , on the first page thereof, and was invalid by reason of its being without date, was an attack upon a final order of the court and was without warrant of any law whatever.

The finding of the court, therefore, that the writing upon the back of said paper does not constitute a legal document, or a legal will, or a legal testamentary disposition of any kind, finds no support in the record before us. The only other question in the case is as to the validity of the bequest made in the said will in favor of the Mount Hellish Union Workhouse. We have already referred to the finding of the court that there is no such person or corporation by that or any other similar name capable under the law of taking by will any property of the decedent.

Upon the hearing of the petition for distribution the appellant appeared and contested the right of the respondents to share in the distribution of said estate. On said hearing appellant offered to prove certain facts, more particularly hereinafter set forth in the affidavit of Thomas Keilly.

It was “stipulated by all parties that the matter of the distribution of the estate of said decedent should be submitted to the court for decision and that the facts stated in said affidavit should be considered as an offer of proof by Laioghis Hospital and Homes Committee; that said affidavit contains all the facts which said Committee could prove in its behalf; that in the event that the court should determine that said affidavit did not contain facts sufficient to entitle said Committee to distribution of any of the estate of the decedent, it should order distribution in favor of the said heirs at law; that if, on the other hand, the trial court should determine that the affidavit did contain facts sufficient to entitle said Committee to distribution of any of the estate of the decedent, it should thereupon announce its decision to that effect and a reasonable opportunity would be given said Committee to present legal and competent proof of the facts stated in said affidavit.” Said affidavit was as follows: “In the Goods of Elizabeth Brady Moeller, deceased.

I, Thomas Reilly, the secretary of the Laioghis Hospital and Homes Committee, aged twenty-one years and upwards, make oath and say as follows: “1. The Mountmellick Union Workhouse was a governmental institution created by statute, vested in, controlled and managed by, the Mountmellick Poor Law Guardians under the control of‘the late Local Government Board for Ireland. The institution was in existence for a period of nearly one hundred years.

After the treaty signed between Great Britain and Ireland and ratified in December, 1921, all government property in Ireland became vested in the Provisional Government of Ireland, and all public Boards and Institutions were transferred to the control of the Provisional Government. “2.

For the purposes of economy and administration all Boards of Guardians of Ireland, including the Mountmellick Poor Law Guardians, were done away with, and all institutions in every individual county in Ireland formerly vested in and controlled by Poor Law Guardians were . vested in and the control of the same transferred to County Hospital and Homes Committees by decree of Dail Eireann (the Irish Parliament) and by order of the Local Government Board for Ireland. Under these powers the Laioghis Hospital and Homes Committee assumed control of the Mountmellick Union Workhouse. “3.

By act of Parliament of Dail Eireánn, the Irish Free State Parliament, called the Local Government Temporary Provisions Act 1923, previous acts and things done by the Provisional Government of Ireland were confirmed and under the said act the Laioghis Hospital and Homes Committee is the statutory body having control of and in which is vested the Mountmellick Union Warehouse. “4.

All legal documents to which public Boards, Committees or Councils in Ireland are parties are legally executed by such public bodies by the chairman of the said Board, Committee or Council affixing the seal of the said body in the presence of the members thereof. The power of attorney in this matter, signed by the chairman of the Laioghis Hospital and Homes Committee was duly and legally executed. “Thomas Reilly. ‘‘Sworn before me at Maryborough in the Queen’s County by said deponent Thomas Reilly who is personally known to me, on the 14th day of January, 1924. “ (Seal) Patrick J.

Meehan, Notary Public.” The court, by ordering distribution of said estate to respondents and by its finding last above referred to, in legal effect, rejected said offer of proof by appellant and denied it the right and opportunity to present proof of the facts set forth in said affidavit. We think this offer of proof, if followed up by legal and competent evidence of the facts stated in said affidavit, sufficient to entitle the appellant to have distributed to it the residue of said estate.

It is true that there is a slight discrepancy between the true name of the beneficiary and that used by the testatrix in referring to it in her will. It is referred to in the will as Mount Mellish Union Workhouse and in the offer of proof, as set out in the affidavit of Thomas Reilly, as the Mountmellick Union Workhouse. We hardly think that this slight error in the spelling of the name of the beneficiary should defeat a legacy in its favor.

In In re Casement, 78 Cal. 136, 141 [20 Pac. 362, 364], it was held where a bequest was made to “Old Ladies’ Home of San Francisco” that “under the liberal rules of construction applicable to legacies to charitable institutions, the court might properly have distributed the money to” Protestant Episcopal Old Ladies’ Home.

In In re Gibson, 75 Cal. 329, 331 [17 Pac. 438, 439], it was held “if from the will itself, or evidence aliunde, the object of the testator’s bounty can be ascertained, a misnomer of a legatee, or devisee, whether a natural person or a corporation, will not invalidate the provision.” It is claimed, however, by respondents that it is necessary for appellant in order to be entitled to the bequest to show that the Mountmellick Union Workhouse is a charitable institution and that the offer of proof fails to show that fact.

Conceding that respondents are correct in their contention that appellant can succeed to such bequest only by showing that the institution under its control is a charitable institution, we think that the offer of proof tended to show the charitable character of the said beneficiary. Up to the time its control was assumed by the agencies of the Irish Free State it was under the management of the Mountmelliek Poor Law Guardians. Under the present government of the Irish Free State the control is vested in appellant, the Laioghis Hospital and Homes Committee.

The names of each of these agencies or boards of control, one the Poor Law Guardians and the other the Hospital and Homes Committee, fairly indicate that their object and purposes were those of administering charity, and we think we are justified in assuming from these names that the Mountmellick Union Workhouse is a charitable institution.

It is next contended by respondents as the management and control of said workhouse has been by law taken from the Mountmelliek Poor Law Guardians, acting under the Local Government Board for Ireland, as said board formerly existed at the date of the execution of said will, and transferred to appellant, whose power is derived from the Irish Free State Parliament, that it cannot be assumed that the testatrix intended that the property of her estate should ever be used for the benefit of said workhouse under such changed conditions and management. We see no force in this argument of respondents.

At the time the will was executed, as we have already seen, the workhouse was a governmental institution created by statute and was administered by guardians under authority of a local government board. Subsequently, as shown by said affidavit, “For the purposes of economy and administration,” a change was made in such management and all such governmental institutions were by statute placed under the control of poor law guardians. Under said statute the Laioghis Hospital and Homes Committee is the statutory body having control of and in which is vested the Mountmelliek Union Workhouse.

There is no showing whatever that there is any difference in the manner of conducting said workhouse or in the object or purposes thereof under the new committee than that which was in effect under the Mountmelliek Poor Law Guardians. In fact, the affidavit of Thomas Beilly, above referred to, in effect negatives any intention to change the character of said institution or the manner in which it had formerly been conducted by providing a different legal agency to administer its affairs.

Said affidavit shows that the change was brought about for the purposes of economy and the better administration of the institutions involved.

It was the intention of the testatrix to aid hy the bequest in her will the operation and maintenance of said poorhouse and to better provide for the inmates therein, and no good reason has been shown or advanced by respondents, nor does any occur to us, why this intention on the part of the testatrix cannot be carried out as effectively under the present management as well as it could have been had the administration of the affairs of said workhouse still remained under the direction of the Mountmellick Poor Law Guardians.

Finally the respondents contend that as the bequest was in favor of the Mountmellick Union Workhouse, the appellant herein, the Laioghis Hospital and Homes Committee, is without any right to receive said bequest and had no standing in the probate court to contest the right of respondents to have the property of said estate distributed to. them. As we have already seen, the bequest in favor of said Mountmellick Union Workhouse was a charitable gift. Its purpose was to benefit the inmates of said workhouse and to assist in the maintenance and operation of the same in caring for said inmates.

The appellant offered to prove that it was the legal “statutory body having control of and in which is vested the Mountmellick Union Workhouse.” While the Mountmellick Union Workhouse is in itself incapable of taking or holding property, as we may assume from the affidavit of Thomas Reilly, it being merely a building and the premises used in connection therewith wherein the inmates are cared for, the appellant, according to said affidavit, is the agency established by the government, whose legal duty it is to direct and carry on the affairs of said workhouse and to have charge and dominion over its property.

As such, there is no question but that it would be the proper and legal body to receive said bequest. The mere fact that the testatrix made the bequest in favor of the workhouse and not in favor of the committee legally in charge of said institution should not defeat said bequest. A case similar to this arose in this state where the decedent made her will in favor of the Old Ladies’ Home at St. Mary’s Hospital. It was proven to the satisfaction of the court that it was the intention of the testatrix to make said bequest in favor of a department in the St.

Mary’s Hospital called the Old Ladies’ Home, the expenses, of which had always been paid by the Sisters of Mercy, who also control said department. The decree of distribution distributed the bequest to the Sisters of Mercy and the said decree was affirmed on appeal (In re Gibson, 75 Cal. 329 [17 Pac. 438]).

We think the same reason for the application of the rule in the above ease applies to the bequest before us, and we conclude, therefore, that the court erred in denying the appellant the right to prove the matters set forth in its offer of proof under the stipulation of the parties made in reference to said offer, and that if the facts stated in said offer of proof are proven by legal and competent evidence, it will be the duty of the probate court to distribute said property to appellant.

The decree of distribution is reversed with directions to the probate court to permit appellant a reasonable opportunity within which to present proof of the facts set forth in its offer of proof as shown by the affidavit of Thomas Reilly, hereinbefore referred to. Richards, J., Shenk, J., and Waste, C. J., concurred. Rehearing denied.