In re Estate of Cook

The deceased on April 25, 1915, being about to go to a hospital to have an operation performed, wrote and sent three letters—one to a brother, another to her sisters and a brother jointly, and a third to a friend who was her business agent. She died on May 26, 1915. A petition was filed in the superior court of Orange County for the probate of the several letters referred to, as constituting the last will of decedent, and as no person was nominated therein as executor, that letters of administration with the will annexed be issued to John H. Higgens, a brother mentioned in one of the proffered letters as a legatee, and who was petitioner for the probate of the will. W. E. Cook, the husband of the deceased, filed a contest to the probate of said letters as the last will of deceased on the grounds, first, that the said letters were not testamentary writings, or testamentary in character, and, second, that even if testamentary in character, nevertheless they should be denied probate, because their taking effect as the last will of deceased was made conditional by her upon her death under an operation she was about to have performed when they were written; that her death did not occur therefrom, and hence said letters never became effective as the will of deceased. Contestant also prayed that in

At the trial the court determined that the letters were of a testamentary character, admitted them to probate as the last will of deceased, and appointed the petitioner, the brother of deceased, administrator with the will annexed. The contestant husband appeals from the order.

As to the points made by appellant for a reversal: It is claimed, first, that the letters of deceased offered for probate were not testamentary in character. The letters were entirely written, dated, and signed by the deceased and sent to the parties to whom they were addressed. The evidence indicates, and the letters themselves state, that the deceased had been suffering for upward of fifteen or twenty years from a malignant disease, and had reached that condition of physical disability where the only hope held out to her for relief was through an operation which she had consented to undergo. It was the day before her departure for the hospital for that purpose that the three letters were written. She stated therein her intention of going to the hospital; that she had been very sick and felt that the only way to regain her health was through an operation; and that while everything might turn out in her favor, she felt that her condition was more serious than the doctor thought, and that she had reason to believe she might not live through it. She then proceeded to declare what she wished done respecting her funeral. She specified the cemetery and lot in which she wished to be buried, the kind of headstone she wanted and the inscription to he placed on it, and named the minister she wished to perform her funeral service. Standing alone, these matters would probably evidence only a desire as to the disposition of her body after her death. But, in addition, she then proceeded to make a disposition of her property. She declared that she wanted Pansy to have all her jewelry except a diamond ring. She wanted the proceeds of a mortgage to be collected by her business agent, to whom one of the letters is written, and such proceeds to be turned over to her brother James W. Higgens, together with the balance due “on the Neffs payments.” She directs further that all her clothing be sent to Alice. In one of the letters she declared that “after all expenses is paid if there is anything left I want it

This claim of appellant is, that the deceased made it a condition precedent to these letters becoming effective as her will that she should die as the result of the operation which was to be performed; that she did not die therefrom but re

As to the operation: The deceased went to the hospital on April 26, 1915, and the next day an operation was performed on her. When she was taken to the hospital she was in a weak and debilitated condition. She did not at all improve after the operation; she never recovered her strength but grew gradually weaker. After remaining three weeks in the hospital she was taken home, where she still continued to fail, and a week afterward—on May 26, 1915—she died; just a month after the operation was performed. An autopsy disclosed that she died of gastric ulcers, a disease from which she had suffered for some twenty years. It appears that she was never informed, nor did she know, the nature of this disease from which she so long suffered. All she knew was that it had so far afflicted her that the only relief she could hope for was through an operation of some kind, which she went to the hospital to have performed. The evidence does not disclose whether she had ever been previous to that time the patient of the physician who performed the operation on her. This operating physician, however, diagnosed her case as involving a diseased condition of other organs of the body than her stomach, and operated on her for those troubles which he said he found existed. This operation, as far as it went, was successfully performed, but it was not an operation for the principal and fatal disease from which the patient was suffering and from which she shortly thereafter died. It was in evidence that in the advanced stage of her stomach disease at the time she went to the hospital no operation could have been performed which would have relieved her condition, and that she would have died from her disease of the stomach about the time probably that she did even if she had not undergone the operation which was performed. While it

Nor is there any merit in the claim of appellant that the deceased died from a wholly new and different disease than the one she was operated on for. The most that can be said is that the operation which was performed did not reach the real disease with which she was afflicted. But, she did not die from any new or different disease than the malignant one from which she was gradually dying when she went to the hospital to have an operation performed for her relief, and from which she did die notwithstanding an operation. It is of no consequence what the diagnosis of her case by the operating physician was, or what the disease was for which

Appellant complains of the action of the court in sustaining a demurrer to a portion of his answer and contest in which he presented the issue as to whether the deceased died from the effects of the operation, or had entirely recovered therefrom and died from the effects of a wholly different disease. This point is based on a construction placed by counsel for appellant on the language in the order sustaining the demurrer of respondent in part, and overruling it in part. But this is a matter we need not consider, because the appellant was not injured whatever the effect of the ruling was, as on the hearing he was informed by the court that the demurrer as sustained did not affect that issue; that he was entitled to present his evidence on it, which he did as fully as he desired and without limitation, and the court found upon the issue against him. The evidence so presented on this issue is that which we have just finished discussing.

The last claim of appellant is that the court—no executor being nominated in any of the letters constituting a will— should, on admitting the will to probate, have granted letters of administration with the will annexed to him as the surviving husband of the testatrix. But this point is not well taken. Section 1365 of the Code of Civil Procedure, applied to section 1350a thereof, governs in the matter of granting letters of administration with the will annexed to the same extent as it governs the granting of letters of administration in cases of intestacy, and in both cases, under the terms of

The order appealed from is affirmed.

Melvin, J., and Henshaw, J., concurred.