I dissent.
i I am convinced that the oraer of the trial court holding that the testator intended the adopted children of the annuitants to be included in the term “children, lawful issue” should be affirmed. . . "
The general rule is that the findings of a trial court should be liberally construed and any inconsistency therein so resolved as to uphold rather than defeat its judgment. (Woodbine v. Van Horn, 29 Cal.2d 95, 109 [173 P.2d 17]; Menghetti v. Dillon, 10 Cal.2d 470, 472 [75 P.2d 596]; Ensele v. Jolley, 188 Cal. 297, 303 [204 P. 1085]; Murray v. Tulare Irrigation Co., 120 Cal. 311, 315 [49 P. 563, 52 P. 586]; Bell v. Scudder, 78 Cal.App.2d 448, 457 [177 P.2d 796].) In this case, by giving a liberal construction to the findings of the trial court, its order can, and should, be affirmed on the following grounds: (1) That the trial court realized the error it committed by first holding that there was an ambiguity in the will in the use of the phrase “lawful issue”; (2) That the trial court, in accord with the general rule, disregarded evidence erroneously admitted and cured its own error by finding against such evidence; (3) That the trial court refused to believe the evidence contrary to its findings.
The first and most basic question is whether there is present in the will here involved the condition precedent to the admission of extrinsic evidence: Ambiguity, or as the code puts it, “uncertainty.” (Prob. Code, §105.) Without such uncertainty, extrinsic evidence of any kind is inadmissible for the purpose of determining the intent of the testator.
In this case, the trial court originally held that there was an ambiguity, and therefore admitted the evidence. But on *276further consideration, the court may very well have come to the conclusion that it had erred. If no “uncertainty” existed, the matter became one purely of law for the court to decide. The evidence could be disregarded. Here, the evidence was obviously disregarded. There is a logical explanation for this disregard. No prejudice can result to any one if the court, after making an error in receiving evidence, realizes the error and cures it by giving the document before it the interpretation it should have received from the start.
Construing the language used in the will under California law as required by Probate Code, section 100, it was entirely reasonable for the trial court to conclude that the testator had in fact not intended to exclude the adopted children of the various annuitants by the use of. the term “children, lawful issue.” This interpretation should be permitted to stand. It is not only reasonable but also in line with the general trend expressed in statutes and cases in this state under which the status of an adopted child is approximated as closely as possible to that of a natural child.
In this connection, it may be conceded that up to this time, the California cases and statutes involved only questions of succession and pretermission rather than the interpretation of documents. The trend in favor of adopted children is nevertheless clear and so is the rule:
“[T]he rule is well settled that where the construction given to an instrument by a trial court is reasonable and appears to be consistent with the intent of the party making it, courts of appellate jurisdiction will not substitute another interpretation, even though it may seem equally tenable with that accorded by the trial court.” (Estate of Northcutt, 16 Cal.2d 683, 690 [107 P.2d 607], and eases there cited.)
Under this reasoning, the trial court was bound to disregard the extrinsic evidence and had to determine the intention of the testator on the basis of the words used in the will itself in accordance with section 105 of the Probate Code. The alleged disregard of the evidence was therefore entirely proper and did not constitute error.
The decision of the trial court receives further support from the following rule:
“. . . that where by the terms of the will it is not made clear nor certain that an intestacy—whether partial or total *277—was intended, an interpretation which will avoid intestacy will be adopted.” (Estate of Northcutt, 16 Cal.2d 683, 689 [107 P.2d 607], and many cases there cited.)
In this case, there would unquestionably be an intestacy if respondents are excluded. There is not the slightest indication of an intent to create such an intestacy in the will. The trial court therefore correctly concluded that the respondents were intended to take under the will.
Next, if it is conceded for the sake of argument that the use of the term “lawful issue” in the will created an uncertainty within the meaning of section 105 of the Probate Code, the oral declarations of the testator are still inadmissible under that same section. The majority opinion recognizes that rule but accords it lip service only.
The evidence contained in the agreed statement of facts shows that respondents’ counsel made immediate objection to the admission of declarations of the testator. The objection was general as well as specific and stated the rule laid down in section 105 of the Probate Code. The following excerpt from .the agreed statement of facts shows that the trial court misunderstood counsel for appellants:
“Mr. Shelton: We are offering this testimony as to the facts and circumstances surrounding the man at the time when the will was executed and the facts thereto so as to make the court conversant with them.
“The Court: You are not seeking by this witness to introduce any statement of the testator with reference to this language 1
“Mr. Shelton: Yes, directly bearing on that in declarations that he had no intention ...”
The trial court then overruled the objection, evidently thinking that the declarations of the testator would not be introduced. The question asked by the trial court showed that it was aware of the rule under which such declarations would not be admissible. Afterwards, when the inadmissibility of the evidence came to light, the trial court must have realized that it was subject to reversal if it rendered a decree based on inadmissible evidence. (Fishbaugh v. Fishbaugh, 15 Cal.2d 445, 457 [101 P.2d 1084].) Under those circumstances, it was the duty of the trial court to disregard the inadmissible portion of the evidence. On appeal, it is presumed that the trial court disregards inadmissible evidence which has crept into the record.
*278“In general, it will be assumed on appeal, where the case is tried by the court without a jury, that the court considered only proper and competent evidence in making its findings and did not consider other evidence which has been admitted erroneously and it will be presumed that such evidence was disregarded.” (5 C.J.S. 405.) The same general rule is stated in almost identical words in 3 American Jurisprudence at page 505 and is supported by many cases. (Bisno v. Herzberg, 75 Cal.App.2d 235, 241 [170 P.2d 973]; Cordi v. Garcia, 56 Cal.App.2d 584, 588 [132 P.2d 887]; Farmers etc. Nat. Bank v. Stowell, 6 Cal.App.2d 373, 378 [44 P.2d 392].)
Looking at the record in the light of this presumption, it is evident that the admissible portion of the evidence, that is, that portion which the trial court was under a duty to consider, shows nothing but the facts that the testator once made and tore up a will and that he became angry on one occasion. And while it may be conceded that this might have been enough evidence to support the conclusion of the trial court, had it concluded that the intention of the testator was to exclude the adopted children of the annuitants, the fact remains that it found to the contrary. Such evidence as was left certainly did not compel the trial court to find one way or the other. A torn will and an outburst of rage are equivocal acts, capable of any number of interpretations. It is axiomatic that under such circumstances the result reached by the trial court should not be disturbed.
Finally, if it is assumed that the words used in the will not only created an “uncertainty” but that .the extrinsic evidence contained in the agreed statement of facts. was admissible (and neither of these points is conceded), the trial court was still free to disbelieve the uncontradicted evidence of the only witness, and evidently did disbelieve it. In a recent ease, when speaking of nncontradicted evidence, the majority of this court said: “But, of course, the trial court was not required to believe their testimony. The trial court is the exclusive judge of the weight of the evidence and the credibility of the witnesses. It is its provinee to give to the evidence that weight to which, in its judgment, it is entitled, and to draw all reasonable inferences therefrom, and if, in its judgment, the evidence is entitled to no weight it may disregard such evidence altogether. (24 Cal. Jur. 886, sec. 135.) ” (Campbell v. Birch, 19 Cal.2d 778, *279789 [122 P.2d 902].) The dissenting judges in this case concurred with the majority on the point mentioned. Page 803 of 19 Cal.2d: “. . . first that the trial court could have disbelieved defendants’ evidence on the subject; and second that an inference . . . arose . . . With the first I agree, but . . .” (See, also, Tretheway v. Tretheway, 16 Cal.2d 133 [104 P.2d 1033].)
There can be no question but that the trial court in this case disregarded or disbelieved the evidence produced at the trial as to the testator’s intention with respect to the adopted children. This the trial court obviously had the right to do. (Estate of Bristol (1943), 23 Cal.2d 221 [143 P.2d 689]; Tretheway v. Tretheway (1940), 16 Cal.2d 133 [104 P.2d 1033].)
In my opinion no ambiguity exists in the meaning of the words used. But if it is conceded that an uncertainty arose, whether some or all of the evidence was admissible or not, there is still a reasonable and logical explanation for the action taken by the trial court.
In a case of this nature, reflections of this kind are removed from the realm of conjecture by the presumption that the trial court acted in the proper discharge of its office and did not reach an arbitrary result. The cases cited supra, show that this court has often recognized the necessity for liberal construction in order to sustain rather than reverse a trial court. The rule that the trial court is presumed to disregard inadmissible evidence in the record is in line with this general principle. In this case, the majority opinion usurps the function of the trial court and reverses it where, under the- .settled rules above outlined, it could and should be affirmed.
Schauer, J., concurred./