Estate of McEuen

MARKS, J.

This is an appeal from an order requiring the executrix of the last will and testament of J. W. McEuen, deceased, to convey to Eleanor R. Layton real property belonging to the estate under the terms of a written contract of purchase and sale. No briefs have been filed and no appearance made on behalf of respondent.

The record discloses that during his lifetime deceased owned a house and lot in the city of Riverside. On May 8, 1934, he entered into a written contract with Eleanor R. Layton whereby he agreed to sell this property to her for $1,000, payable $10 on May 8, 1934, $10 on July 1, 1934,

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and $10 on the first day of each month thereafter until the purchase price, with interest at the rate of seven per cent per annum, be paid. During September, 1934, petitioner, at the request of deceased and in his presence, wrote in the body of the contract the following clause:

“In the event of my death the property is to be hers (Eleanor B. Layton’s) without further payment.”

Petitioner continued the payments until October 24, 1934, the date of decedent’s death. On October 26, 1935, petitioner filed her petition for an order directing the executrix to convey the property to her. At the time of the death of deceased there was unpaid on the purchase price $982.10, and $1,058.09 at the time of the hearing of the petition. She had not paid, nor did she tender or offer to pay, the unpaid balance of the purchase price of the property. Her petition was granted and this appeal followed.

The question presented is the nature of the clause interpolated into the contract of sale. It certainly is not a valid testamentary disposition of property because it was not executed with any of the formalities necessary to the legality of such documents. (Secs. 50, 53, Probate Code.) It was not a gift. As was said in

Zeller

v.

Jordan,

105 Cal. 143 [38 Pac. 640]:

“And the evidence also fails to show a gift