## Facts

- Thelma L. Russell executed a holographic will (March 18, 1957) stating she left “everything I own Real & Personal to Chester H. Quinn & Roxy Russell.”
- On the reverse side, she left her “Ten dollar gold Piece & diamonds” to her niece, Georgia Nan Russell.
- Quinn was a close friend who had lived on Russell’s property for over 25 years and stood in a relationship of personal trust and confidence with her.
- “Roxy Russell” was Russell’s Airedale dog; the dog was alive when the will was executed but died in 1958, before Russell died in 1965.
- Georgia was Russell’s sole heir at law.
- Georgia filed a petition to determine heirship, alleging the residuary bequest to Roxy was void because animals cannot take by will, and that Roxy’s share should pass to Georgia by intestacy.
- At the heirship hearing, extrinsic evidence (admitted without objection) established that “Roxy Russell” referred to Russell’s dog and that the dog predeceased Russell.
- Quinn sought to introduce additional extrinsic evidence of Russell’s statements and their relationship to show she intended Quinn to receive the entire residue with Roxy mentioned only to ensure the dog’s care; Georgia objected on statute of wills and parol evidence grounds.
- The probate court distributed the entire residue to Quinn; Georgia appealed.

## Issues

1. Whether the phrase “to Chester H. Quinn & Roxy Russell” made Quinn and Roxy co-beneficiaries of the residue or made an outright gift to Quinn with Roxy mentioned only as a nonbeneficial purpose.
2. Whether a direct testamentary gift to a dog is valid under California law.
3. Whether extrinsic evidence was admissible (a) to identify “Roxy Russell” as a dog and (b) to alter the apparent dispositive scheme into a sole gift to Quinn or a trust/purpose arrangement for the dog.
4. If the gift to Roxy was void, whether that portion passed to Quinn or instead passed by intestacy to Georgia.

## Decision

- The court construed “to Chester H. Quinn & Roxy Russell” as a residuary disposition in equal shares to two named beneficiaries.
- A direct gift to a dog was void because an animal is not a legally capable beneficiary.
- Extrinsic evidence was admissible to reveal and resolve a latent ambiguity by identifying “Roxy Russell” as Russell’s dog and establishing the dog’s death before Russell’s death.
- Extrinsic evidence was not admissible to contradict the will’s clear terms or to convert an equal-shares gift to two beneficiaries into a sole gift to Quinn or into a trust-like arrangement for the dog.
- The void share did not increase Quinn’s share; the failed portion of the residue passed by intestate succession to Georgia as the sole heir.
- The court reversed the decree distributing the entire residue to Quinn.

## Legal Principles

- A will is construed to carry out the testator’s intent as expressed in the instrument; intent cannot be supplied by extrinsic testimony that would change an unambiguous dispositive scheme.
- Extrinsic evidence may be used to resolve latent ambiguities and to identify persons or things referenced in a will, including determining what a named beneficiary refers to.
- Extrinsic evidence may not be used to add dispositive terms, contradict clear language, or recharacterize an outright gift as a trust or purpose obligation absent language in the will supporting that construction.
- Animals are not capable of taking property by will; a direct testamentary gift to an animal is void.
- When a portion of a residuary gift fails as void and the will provides no valid alternative disposition, that portion passes by intestacy rather than automatically enlarging the share of a co-residuary beneficiary.

## Conclusion

The court treated the will’s residuary clause as an equal division between Quinn and a named second beneficiary, held the second beneficiary (a dog) could not take, limited extrinsic evidence to identification rather than rewriting, and directed that the void half of the residue pass to the decedent’s sole heir by intestacy rather than to Quinn.


Estate of Russell, 69 Cal. 2d 200, 444 P.2d 353 (Cal. 1968)