In re Estate of Russell
69 Ca. 2d 200, 444 P.2d 353 (1968)

  • Russell died leaving a holographic will.
    • The will (written on an index card) left “everything” to Chester and Roxy.
      • Chester was Russell’s friend and neighbor.
      • Roxy was Russell’s dog (who predeceased Russell).
    • The back side of the will left some diamonds and a gold coin to Georgia (her niece).
  • Georgia contested the will.
    • Georgia argued that California State law didn’t allow pets to take $$$ from a will. Therefore, half of the estate should go to Chester, and the half intended for the dog should pass through intestate transfer (to Georgia naturally.)
    • Chester argued that the intent of the will was that Chester was to receive the entire estate and that Russell was charging him with taking care of the dog after Russell’s death.
  • The Trial Court found for Chester. Georgia appealed.
    • The Trial Court found that it was in the intent of Russell to give the entire estate (except the coin and diamonds) to Chester, and have him take care of the dog.
  • The California Supreme Court reversed.
    • The California Supreme Court found that when the language of a will is ambiguous or uncertain, one can look to extrinsic evidence in order to determine the intent of the testator.
    • The Court found that the will contained a latent ambiguity.
      • A latent ambiguity is one which is not apparent on the face of the will by is disclosed by some fact collateral to it.
        • Two kinds of latent ambiguities:
          • Where two people or things both meet the description in the will.
          • Where no person or thing exactly meets the description in the will.
      • A patent ambiguity is an uncertainty that appears on the face of the will.
    • Based on their reading of the will, the Court it was reasonable to infer that Russell was talking about her dog when she wrote about Roxy.
    • However, what was not inferable was the fact that she intended to leave 100% of her estate to Chester and have Chester take care of her dog.
      • “A disposition in equal shares between two beneficiaries cannot be equated with a disposition of the whole to one of them who may use whatever portion thereof as might be necessary on behalf of the other.”
      • There were no words that could be interpreted as allowing Chester to hold Roxy’s share in trust.
    • Therefore, Chester didn’t get the 50% that Russell left to the dog. The dog couldn’t take it either, so it passed through intestate succession.