Kobus v. San Diego Trust & Savings Bank

MUSSELL, Acting P. J.

This is an action to impose a constructive trust on property owned by Edward Keller during his lifetime and to enforce an alleged oral agreement to make a will. The appeal herein is on the judgment roll and the question of the sufficiency of the evidence is therefore not open.

(White

v.

Jones,

136 Cal.App.2d 567, 569 [288 P.2d 913].)

The facts as reflected by the findings are as follows: On or about August 1, 1954, plaintiff and Edward Keller entered into an oral agreement under the terms of which plaintiff, who was a practical nurse, agreed to move into the residence of said Edward Keller, do all of the housework and care for him for the rest of his life. He agreed in consideration therefor to make a will leaving to plaintiff all of his property, both real and personal, upon his death. Plaintiff fully performed her part of the agreement, moving into the decedent’s residence, doing all his housework, and caring for him constantly from August 1,1954, until his death on June 27, 1955. She received no compensation for her services during said period and Keller’s income was such that he could not pay for such care in any other manner than by promising to compensate her

[576]

with his remaining property. He intended to carry out his part of the agreement and for that purpose, on October 11, 1954, executed a will, signed by witnesses, to whom he stated that he was making the will to compensate plaintiff for caring for him the rest of his life. However, the will was denied admission to probate because it was improperly executed in that Keller’s signature was improperly placed on said document. Apparently, this signature was placed at the top of this instrument instead of at the end because of decedent’s ignorance of the law.

Keller had previously employed plaintiff and had released her because of his inability to pay for her services. Later, he reemployed her, promising that if she would care for him the rest of his life he would give her his remaining property. His property consisted of a residence at Oceanside, California, of the approximate value of $5,000 and what remained of a $2,000 note.