Dahlgren v. First National Bank of Nevada

580 P.2d 478, 94 Nev. 387, 1978 Nev. LEXIS 573

• Court: Nevada Supreme Court
• Decided: June 28, 1978
• Docket: No. 9146
• Status: Published

Opinions

OPINION

By the Court,

Manoukian, J.:

During her lifetime, Julia Mae Carlin, as trustor, entered into a trust agreement with First National Bank of Nevada, as trustee. A provision of the trust provided that upon the death of trustor, her condominium together with a cash sum was to be distributed to Mamie Gilson.

Shortly after establishing the trust, Julia, through her attorneys, tendered to the trustee a dated and signed hand-written instrument indicating that along with the condominium decedent wished Gilson to have certain chattel property. Because title to the condominium was never given to the trustee before Julia’s death, it could not be distributed according to her instructions. The Bank, however, petitioned the court below to admit the hand-written instrument to probate as a holographic will. Appellant, decedent’s niece, contested that petition.

Following trial, the lower court ordered all trust assets, except the condominium distributed pursuant to the trust agreement.¹ Subsequently, the court determined the hand-written instrument to be a holographic will and ordered respondent to execute a deed transferring the condominium to Gilson.² Appellant appeals that decision and order.

The sole issue confronting us is whether the trial court erred in finding the hand-written instrument to be a holographic will.

The principal focus of this case involves the sufficiency of decedent’s testamentary intent. The hand-written instrument containing both date and signature read: “To whom it may concern, Along with my apt. mentioned in the trust fund, I would like Maymie Gilson to have all my personal effects, furniture and belongings.”

Appellant contends that this instrument evidences insufficient testamentary intent or, in the alternative, any intent is specifically addressed to the chattel property only and the condominium must thus pass through intestacy. Respondent argues that the instrument adequately incorporates by reference the trust agreement and that the necessary testamentary intent is supplied by the trust instrument. Appellant’s contention has substantial merit, and we are constrained to summarily disagree with respondent’s argument.

The trust agreement was created to provide income to the decedent during her lifetime and to dispose of the trust res at her death. The instrument in part provided that:

FIFTH: Upon the death of the trustor, the trust estate shall be administered subject to the following terms and conditions:

(c) The Trustee shall make the following distributions:

10. To Mamie Gilson, trustor’s condominium apartment. . . .

There is no evidence whatsoever that decedent intended the trust to be anything other than an inter vivos document. However, the record is clear, and the court so found, that at no time was the condominium ever deeded to respondent, and it therefore did not become a part of the trust estate. See, Long v. Long, 252 S.W.2d 235 (Tex.App. 1952). The court did find, however, that the hand-written instrument was holographic in nature and that since it made reference to the trust that that was sufficient to unequivocably evidence decedent’s intent that the condominium pass on her death to Gilson.

The standard for the interpretation of a will is the intention of the testator, Soady v. First National Bank, 82 Nev. 97, 411 P.2d 482 (1966); In re Hartung’s Estate, 39 Nev. 200, 155 P. 353 (1916); In re Hartung, 40 Nev. 262, 160 P. 782 (1916), determined by the meaning of the words used. Soady, supra; Jones v. First Nat. Bank, 72 Nev. 121, 296 P.2d 295 (1956).

The court stated in In re Button’s Estate, 287 P. 964, 967 (Cal. 1930), that:

In order for a document to be the last will and testament of a deceased person, it must, in addition to meeting all other legal requirements, clearly show that the decedent intended it to take effect only after his death. . . .

The court further stated, quoting from Estate of Spitzer, 237 P. 739, 742 (Cal. 1925) that:

It is undoubtedly the general rule enunciated by the leading case of Habergham v. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property to accrue and take effect only upon his death and passing no present interest.

For an instrument to qualify as a will it must demonstrate testamentary intent. In Hooker v. Barton, 284 P.2d 708, 710 (Okla. 1955), the court stated:

We have long been committed to the rule that where an instrument is tendered to probate as an holographic will, it must be plainly apparent that it was the intention of the deceased that the paper should stand for her last will and testament, and an insturment should be denied Probate unless such intention is plainly apparent.

In the instant case, the holographic document does not reflect that it is a will or that the properties therein mentioned were to pass upon death. The document expresses only a wish.

The decision and order of the lower court is reversed and the properties mentioned in the proffered holographic document shall be distributed in accordance with the laws governing intestacy.

Batjer, C. J., and Thompson, J., concur.

1 The trust assets consisted of personal properties, including currency and diversified stocks, but the trust made no reference to personal effects, furniture, or “belongings.”

2 NRS 133.090 provides:

“1. A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state and need not be witnessed.

2. Every person of sound mind, over the age of 18 years, including married women, may, by last holographic will, dispose of all of his or her estate, real or personal, the same being chargeable with the payment of the testator’s debts.

3. Such wills shall be valid and have full effect for the purpose for which they are intended.”