Person Page - 849

     Russell Dillinger was born in 1923 at Souderton, Montgomery Co., PA.¹ He was the son of Chauncey Dillinger and Emma Price.

     Absalom Erwin Dillingham was born on 15 April 1836 at Buncombe Co., NC.¹ He married Mary Ann Williams. Absalom Erwin Dillingham died on 11 July 1865 at Gilmer Co., GA, at age 29. He was buried in July 1865 at Boones Creek Baptist Church Cemetery, Gray, Washington Co., TN, Find A Grave Memorial# 60964147.

     Arthur Benner Dillingham was born on 24 March 1913.¹ He was the son of Dr. William Ray Dillingham and Ella M. Benner.¹

     Beulah M. Dillingham was born on 30 September 1890 at Kendrick, Latah Co., ID. She was the daughter of William Collin Dillingham and Della Butcher. Beulah M. Dillingham died on 4 April 1968 at Los Angeles, Los Angeles Co., CA, at age 77. She was buried in April 1968 at Inglewood Cemetery, Inglewood, Los Angeles Co., CA.
Note: From the Shelbyville (IN) Democrat; Tuesday, July 5, 1921; Page 1; http://www.shelbycountyindiana.org/obituaries/obit_mundehenk.htm

DIES IN ATTEMPT TO SAVE FIANCEE
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JOHN J. MUNDEHENK, MANAGER OF INDIANAPOLIS AUTO COMPANY, DROWNED
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In an attempt to save his fiancée, Miss Beulah Dillingham, of Indianapolis, daughter of Mrs. Charles F. Schmoe, of this city, from drowning in Big Blue river, north of Marietta, Sunday evening about 7 o'clock, John J. Mundehenk 28 years old, of Brookville, O., was caught in a whirlpool and carried below the surface of the water. Expert swimmers of this city and the Marietta community worked until midnight before they located the body and dragged it to shore with large hooks.
The body was taken to the undertaking establishment of Ralph J. Edwards, west Broadway, where it was prepared for burial. Mr. and Mrs. John Mundehenk, Sr., of Brookville, O., were notified of their son's tragic death and arrangements were made to take the body to the home in Brookville. The body was taken to Brookville, Sunday, where funeral and burial services will be held.
The death of Mundhenk came after a desperate struggle to save the life of Miss Dillingham, who fell into the river when she became unbalanced in reaching for her hat which had fallen and was caught on a projecture. Mrs. Schmoe and niece, Thelma Schoffield, who makes her home with Mrs. Schmoe, were the other persons of the party and on seeing the young woman fall into the water, Mrs. Schmoe yelled to Mundehenk, who was catching crawfish some distance away. He rushed to the spot, and, knowing Miss Dillingham was a swimmer, thought she was not in danger.
On seeing the girl go down beneath the surface he dived into the river and was towing her to shore when they were caught in the whirlpool. He struggled desperately to make headway toward the bank and on realizing he could not hold up much longer gave the girl a shove which sent her out of the whirlpool. Mrs. Schmoe who was on the bank thrust out a pole to which was tied a rope made out of strips of clothing, to which the girl clung. The young man caught onto the heel of the girl and the two were being towed to shore by Mrs. Schmoe when the rope made of clothing broke in two and the two were carried back into the current. Mendehenk[sic] was caught by the whirlpool and was carried beneath the surface and did not come up. Miss Dillingham was carried downstream by the current and was saved when she caught hold of a bush on the opposite side of the river and pulled herself onto the bank.
The tragedy caused a keen shock to many persons here who were acquainted with the deceased. Mendehenk[sic] was employed as a traveling salesman and manager of the Welbon Auto Co., of Indianapolis, and resided on Illinois street. His marriage with Miss Dillingham was expected to take place in the near future. Miss Dillingham resides in Indianapolis. She has not yet recovered from the shock and fright of the tragedy.
Surviving Mendehenk[sic] are the parents and two brothers, one aged 23 years and the other 8 years. He was a man of splendid character.

Estate of Dillingham [15 Cal. App. 3d 707]
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[Civ. No. 36774. Court of Appeals of California, Second Appellate District, Division Four. March 1, 1971.]
Estate of BEULAH M. DILLINGHAM, Deceased. RUTH SCHMUTZLER, Petitioner and Appellant, v. FLORENCE DOWNEN et al., Claimants and Respondents

(Opinion by Jefferson, Acting P. J., with Kingsley and Dunn, JJ., concurring.)

COUNSEL
Sapin & Woldman, Sandy Sapin and Alfred Fadel for Petitioner and Appellant.

John Maharg, County Counsel, David Breier, Deputy County Counsel, Hartman & Sampson, Newton Kalman, Young & Young and Walter H. Young for Claimants and Respondents.

OPINION

JEFFERSON, Acting P. J.

Ruth Schmutzler appeals from a judgment of the trial court rendered on her petition to determine interests in the estate of Beulah M. Dillingham, ruling that the petitioner is entitled to receive under the will only the residence, furniture and clothing of the deceased.

Beulah M. Dillingham died on April 4, 1968, leaving an holographic will fn. 1 which was duly admitted to probate. When the named executor [15 Cal. App. 3d 709] declined to act, the public administrator was appointed and filed a petition for letters listing as heirs at law six adults, all of whom made claims and petitioned for a determination of heirship and distribution. Ruth Schmutzler, a good friend of the decedent, then filed a petition claiming that she was entitled to take the entire estate except for the amount of one specific bequest of $1,000 made to Mrs. Mable O'Dell.

The testatrix was an elderly woman who for a number of years immediately preceding her death had lived alone in a single family residence on 88th Place in Los Angeles which she owned. The testatrix' mother had predeceased her; she had no children, and her only living relatives were first cousins who resided outside of California. During the last few years of her life the testatrix was ill and unable to care for herself alone. She had never been in close touch with her surviving relatives and her neighbors undertook to visit her home, take her to see the doctor, and help her with shopping and cooking.

The holographic will of the testatrix bequeathed to Ruth Schmutzler a gift of "house and content of furniture and clothing" and to Mable O'Dell the sum of $1,000. The testatrix left other assets, including a safety deposit box and its contents, which were not specifically disposed of by the will. In her petition to determine interest Ruth Schmutzler alleged that the testatrix intended to will her entire estate to petitioner. As a consequence the trial was bifurcated, all parties waived jury trial and the claim of Ruth Schmutzler was first determined.

Ruth Schmutzler testified concerning her relationship with the testatrix and the court admitted the testimony of a second witness, Mrs. Pearl A. Keene, for the sole purpose of showing the circumstances surrounding the execution of the will. (Prob. Code, § 105.) Mrs. Keene, who lived across the street from the testatrix, had been her intimate acquaintance for over 30 years. She did not know Ruth Schmutzler, but the testatrix frequently spoke of Ruth and Mrs. Keene knew that Ruth often visited the house. The testatrix also received letters from a cousin and a woman who lived in Florida, and these letters Mrs. Keene often read aloud for her. [15 Cal. App. 3d 710]

On or about October 11, 1967, the testatrix engaged Mrs. Keene in a conversation about writing an holographic will. Mrs. Keene then accompanied the testatrix into her house and the holographic will which was admitted to probate was written in her presence. As the testatrix wrote she made comments and asked questions, and the witness related these statements to the best of her recollection.

The trial court found, after hearing the evidence, that the provisions of the will were not reasonably susceptible of two or more meanings and that there was no uncertainty arising upon the face of the will, and concluded that there was neither a patent or a latent ambiguity made to appear by the extrinsic evidence.

[1] The appellant contends that a patent ambiguity appears in the will with respect to the legacy of "house and content of furniture and clothing" to Ruth Schmutzler. The trial court, however, found that the testatrix used and understood the words in their common meaning and there is no evidence from which a contrary inference may reasonably be drawn. Although the testatrix left other assets, including cash in the bank, securities, and jewelry, the evidence does not disclose the location of the bank books and securities either at the time the will was being prepared or at the time of Mrs. Dillingham's death. Moreover, the testatrix made specific reference to her safe deposit box and indicated that she felt unable to make a complete testamentary disposition of the items therein situated as she was preparing her will. There is no evidence that she intended something more to pass to Ruth Schmutzler than the house, furniture and clothing.

[2a] The appellant further contends that the failure to dispose of the residue implies a latent ambiguity under the presumption against partial intestacy. "Broadly speaking, there are two classes of wills presenting latent ambiguities, for the removal of which ambiguities resort to extrinsic evidence is permissible. The one class is where there are two or more persons or things exactly measuring up to the description and conditions of the will... The other class is where no person or thing exactly answers the declarations and descriptions of the will, but where two or more persons or things in part though imperfectly do so answer." (Estate of Donnellan, 164 Cal. 14, 20 [127 P. 166]; also Estate of Russell, 69 Cal. 2d 200, 207 [70 Cal.Rptr. 561, 444 P.2d 353].)

[3] A will is to be interpreted to execute the intention of the testatrix (Estate of Nielsen, 204 Cal. App. 2d 357, 361 [22 Cal.Rptr. 260, 94 A.L.R.2d 1100]) but it is not open to construction merely because it fails to dispose of all of the property and the court may not on this ground supply dispositive clauses lacking in the will." The rule is that a will is to [15 Cal. App. 3d 711] be construed according to the intention of the testator, and so as to avoid intestacy. (Prob. Code, §§ 101, 102.) However, a court may not write a will which the testator did not write. 'To say that because a will does not dispose of all of the testator's property it is ambiguous and must be construed so as to prevent intestacy, either total or partial, is to use a rule of construction as the reason for construction. But a will is never open to construction merely because it does not dispose of all of the ... property." (Estate of Barnes, 63 Cal. 2d 580, 583 [47 Cal.Rptr. 480, 407 P.2d 656]; Estate of Beldon, 11 Cal. 2d 108, 112 [77 P.2d 1052]; Estate of Deacon, 172 Cal. App. 2d 319, 323-324 [342 P.2d 261].) "A testator has the right to make a will which does not dispose of all of his property but which leaves the residue to his heirs at law under law of succession. [Citations.]" (Estate of Gundelach, 263 Cal. App. 2d 825, 830 [70 Cal.Rptr. 140].) [2b] The determination of the trial court is supported by substantial evidence and the language giving Ruth Schmutzler the "house and content of furniture and clothing" is clear.

The judgment is affirmed.

Kingsley, J., and Dunn, J., concurred.

FN 1. The holographic will of the decedent is as follows:

"Oct. 11-1968 Los Angeles, Calif.

"I Beulah M. Dillingham.

of 527 W-88-Place 44 -- make my last Will and testament I bought a crypt in Inglewood Cemetery 1834 W-gage Ave. number being Devotion Rose 366 I paid 475.00 cash for it years ago I paid $189.00 cash for opening and closing of same I also paid for flower vase and Name Plate I also bought a casket for $620.00 name in paper $6.00 Flower arrangement $35.00 I paid $20.00 Tax on the casket $12.00 filing this all can be found in my safety deposet box Security First National Bank. Manchester and Boadway the number is 1236. I have not any outstanding Bill at Present time if any bills later I will have medicare July 1st claim number 557-32-9049A any help I need to take care of me can be paid for out of my insurance or cash I can pay for administrator to take care of my Will at Bank of America at Broadway & Manchester. I wish Ruth Schmourtzler of 2828 Artesia Blvd Torrance California Phone 532-4786 to have this house and content of furniture & clothing also Mrs. Mable O Dell of Riggins Idaho Box 32 to have $1,000.00 dollars in cash she is nice to write me the news of our family she is the only one of our family that does none of the other do The Wiesler family in Detroit are out of my life as I never hear from them or any of my relations I will state here who I want to have my diamonds & pin in the safety Deposit box at Security First National Bank Manchester & Broadway. This is hard to do as I do not know any one or see any one But Ruth Schmourtzler calls me once a week.

Beulah M. Dillingham."

     Harriet Matilda Dillingham was also known as "Hattie". She was born on 11 February 1857 at Gilmer Co. (probably), GA.^1,2 She was the daughter of Absalom Erwin Dillingham and Mary Ann Williams.¹ Harriet Matilda Dillingham married Martin Kitzmiller Hodges circa 1873.² Harriet Matilda Dillingham died on 25 July 1921 at Washington Co., TN, at age 64. She was buried in July 1921 at Boones Creek Baptist Church Cemetery, Gray, Washington Co., TN, Find A Grave Memorial# 61046507.

     Helen Frances Dillingham was born on 22 July 1911.¹ She was the daughter of Dr. William Ray Dillingham and Ella M. Benner.¹

     Marjorie Bell Dillingham was born on 19 March 1928 at Providence, Providence Co., RI. She was the daughter of William Pitt Dillingham and Nora Lucille Musick. Marjorie Bell Dillingham died on 19 May 2003 at California at age 75.

     Robert William Dillingham married Emily J. Wright.

     William Collin Dillingham was born on 31 July 1856 at Knob Noster, Johnson Co., MO. He was the son of Robert William Dillingham and Emily J. Wright. William Collin Dillingham married Della Butcher, daughter of Joseph Milton Butcher and Lydia Ann Munson, on 17 June 1891 at Kendrick, Latah Co., ID. William Collin Dillingham and Della Butcher were divorced. William Collin Dillingham died on 13 January 1913 at Walla Walla, Walla Walla Co., WA, at age 56.

     William Pitt Dillingham married Nora Lucille Musick.

     Dr. William Ray Dillingham was born in 1883 at Hiawatha, Brown Co., KS.¹ He married Ella M. Benner, daughter of Henry M. Benner and Mary S. Price, on 2 September 1908.¹ Dr. William Ray Dillingham lived in 1926 at Halstead, Harvey Co., KS, Physician.¹

     William Roy Dillingham was born on 17 July 1915.¹ He was the son of Dr. William Ray Dillingham and Ella M. Benner.¹

     Elizabeth Dillman married Elijah Harris.¹

     Josephine A. Dillman was born on 1 August 1880 at Indiana.¹ She married Charles A. Benson on 19 November 1902 at Warren Co., IN. Josephine A. Dillman died on 9 May 1974 at Coshocton Co., OH, at age 93. She was buried in May 1974 at Frazeysburg Cemetery, Frazeysburg, Muskingum Co., OH, Find A Grave Memorial# 81754666.

     Anna M. Dillon was born on 10 January 1908 at Kansas.¹ She married Leonard Irwin Morford, son of Joseph Guy Morford and Cora Martin.¹ Anna M. Dillon died on 24 February 1997 at age 89. She was buried in February 1997 at Evergreen Cemetery, Colorado Springs, El Paso Co., CO, Findagrave #22684056.

     John Dillon was born on 13 December 1804 at Ohio. He married Hannah Boyd on 14 January 1824. John Dillon died on 2 June 1866 at Dillon, Tazewell Co., IL, at age 61.

     John Henry Dillon was born on 16 September 1908. He married Elizabeth Hosford Yandell, daughter of Lunsford Pitts Yandell III and Elizabeth Sanborn Hosford. John Henry Dillon died on 4 April 1967 at age 58.

     Mabel Catherine Dillon was born on 15 October 1887 at DeKalb Co., IL. She married Jacob George Walwer. Mabel Catherine Dillon died on 24 October 1948 at Bureau Co., IL, at age 61.

     Maria Dillon married Stephen P. Grove.¹

     Mary Dillon was born circa 1832 at Illinois.¹ She was the daughter of John Dillon and Hannah Boyd. Mary Dillon married Timothy Larimore, son of William Larimore Sr. and Nancy McMann, on 19 April 1857 at Pekin, Tazewell Co., IL.

     Mary Dillon married John D. Myers.

     Mary Dillon was born on 3 January 1828 at Ontario Co., NY.¹ She married Henry Britton Webster in 1846 at Ontario Co., NY.¹ Mary Dillon died on 30 April 1891 at La Porte City, Black Hawk Co., IA, at age 63. She was buried in May 1891 at Westview Cemetery, La Porte City, Black Hawk Co., IA, Findagrave #18208319.

     Minnie Lee Dillon was born on 2 February 1891 at Franklin Co., VA.¹ She married Walter Leo Kraning on 16 December 1909 at Miami Co., IN, license date. Minnie Lee Dillon died on 17 September 1942 at Logansport, Cass Co., IN, at age 51. She was buried in September 1942 at Greenlawn Cemetery, Mexico, Miami Co., IN, Findagrave #82091370.

     Miriam P. Dillon married Lyne Starling, son of Edmund Lyne Starling and Ann Maria Todd, on 18 July 1839 at Henderson, KY.¹ Miriam P. Dillon died on 20 January 1841. She was buried in January 1841 at Fernwood Cemetery, Henderson, Henderson Co., KY, Findagrave #90341803.

     Patrick Joseph Dillon was born in 1957. He died in 1975.

     Anna Diltz was born circa 1760 at Hunterdon Co., NJ. She married John Hipple circa 1782 at Bedford Co., PA. Anna Diltz died on 27 December 1841 at Woodberry Twp., Bedford Co., PA.

     Anne Price Dilworth was born on 7 March 1920 at Pittsburgh, Allegheny Co., PA. She was the daughter of Joseph Dilworth and Barbara Winston Brown. Anne Price Dilworth died on 6 July 1936 at Pittsburgh, Allegheny Co., PA, at age 16. She was buried in July 1936 at Homewood Cemetery, Pittsburgh, Allegheny Co., PA, Find A Grave Memorial# 90845040.

     Clemanda Dilworth married John House, son of Abraham House and Judith Fitzwater.

     Joseph Dilworth was born in 1886. He married Barbara Winston Brown, daughter of Henry Graham Brown and Anne Price Pugsley. Joseph Dilworth died in 1967. He was buried in 1967 at Homewood Cemetery, Pittsburgh, Allegheny Co., PA, Find A Grave Memorial# 90845053.

     Elmer Hickman Dimity was born on 30 May 1884 at Tipton, Moniteau Co., MO, WW II draft registration.¹ He married Ethel M. Munsinger, daughter of Joseph Korah Munsinger and Edith Eleanor Steward, before 1930. Elmer Hickman Dimity lived on 4 April 1930 at Los Angeles, Los Angeles Co., CA, president, aircraft factory.¹ He lived in 1932 at Los Angeles, Los Angeles Co., CA. He lived in 1942 at 2629 Dwight Way, Berkeley, Alameda Co., CA, WW II draft registration. He died on 2 December 1972 at Alameda Co., CA, at age 88.
Note: Elmer and Ethel Dimity were Directors of the Amelia Earhart foundation from 1937 - 1942.