Jones v. Clark

CURTIS, J. —

The defendants prosecute this appeal from a judgment enforcing a written contract to devise property and decreeing that plaintiff is the equitable owner thereof and entitled to its conveyance, the defendants holding it in trust for her use and benefit. The principal issue on the appeal has to do with the asserted insufficiency of the evidence to support such judgment.

It appears that in August, 1935, the plaintiff, a married niece of the testatrix, was living in Acworth, New Hampshire, where she and her husband owned several parcels of real property. At about this time the testatrix, a childless widow, left her home in Alhambra in this state to visit with her sister and nieces in Detroit, Michigan, and other places. During the course of her sojourn she visited with the plaintiff in New Hampshire where she remained about a month. While there the testatrix apparently became fond of the plaintiff, who testified that on an occasion when they were conversing the testatrix stated, “If I would come to California to live and be near her and sell my property in New Hampshire, that she would leave me her property here in California. She said she was lonely since her daughter’s death . . . that none of her relatives were out here, that no one was here, and that she wished I would be near her, so that she could see me.”

Later, and after her return to this state, the testatrix, according to plaintiff’s testimony, repeated this offer by letter on several occasions, wanting to know “how soon I could straighten out my affairs and come out there.” Plaintiff

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ultimately replied accepting the offer, indicating that she would come to this state as early as necessary adjustments would permit. Plaintiff testified that these several letters were either lost or destroyed in the moving process, she having attached no particular importance to their continued existence.

In March, 1936, plaintiff and her husband did move to southern California where they continued to live except for a return visit to New Hampshire to sell their property, the sale being upon the advice and at the request of the testatrix. Plaintiff lived for a while in Hollywood and later, at the request of the testatrix, in Alhambra in the immediate vicinity of the home of the testatrix. She lived at the latter place until her aunt’s death in August, 1938, spending much time with her aunt until a few weeks prior to the latter’s death when some disagreement occurred between them.