Estate of Morrison

98 Cal.App.2d 380 (1950) Estate of WILTON M. MORRISON, Deceased. RUTH ROGERS et al., Appellants,

v.

SECURITY TRUST AND SAVINGS BANK OF SAN DIEGO (a Corporation), as Executor, etc., Respondent.

Civ. No. 3990. California Court of Appeals. Fourth Dist.

July 10, 1950. H. G. Sloane for Appellants.

Renwick Thompson for Respondent.

MUSSELL, J.

Appeal from an order denying admission to probate of an holographic codicil.

Appellants Ruth Rogers, Marjorie W. Phipps, Gladys Morrison, Lloyd Hanck and Mrs. J. Breckenridge are legatees and devisees named in a codicil to the will of Wilton M. Morrison and appeal from the order of the trial court denying its admission to probate.

From the settled statement, in lieu of a reporter's transcript and clerk's transcript, it appears that Wilton M. Morrison [381] died in the city of San Diego on April 10, 1949. The Security Trust and Savings Bank of that city duly filed a petition for probate of will and codicil and deposited with the county clerk a formal typewritten and witnessed will bearing date December 6, 1948; also three documents in the handwriting of the decedent. The petition of the bank asked that the formal will be admitted to probate and that an adjudication be made by the court whether the three documents in the handwriting of the decedent constituted a valid holographic codicil to the last will and testament of the decedent. The trial court, after hearing, admitted the formal will to probate and found and decreed that the said three documents did not constitute a valid holographic codicil to the last will and testament of the decedent and said writings were denied admission to probate. The sole question presented is whether the three documents constitute a valid codicil to the formal will of decedent.

It further appears from the settled statement that the decedent, for several months prior to his death on April 10, 1949, was suffering from cancer. On April 9, 1949, he was aware of his condition and in the afternoon of that day requested his friend and companion, Lloyd Hanck, to communicate with his lawyer, who had prepared the will of December 6, 1948. The attorney could not be reached. Between 2 and 3 o'clock in the afternoon of April 9th decedent had friends visit him at his apartment, listened to a broadcast of a baseball game and discussed the game with his friend, Lloyd Hanck. At about 3 o'clock Mr. Morrison complained, stating that he was not feeling well, and in the evening of that day, in the presence of his wife, Hazel Morrison, and Lloyd Hanck, decedent requested his wife to get him a pencil and a pad of paper. She handed these to him and he started writing on the top sheet, using a cushion in his lap for support. He requested Lloyd Hanck to move his seat as he wanted him to act as a witness. Decedent completed the writing in the course of 20 to 30 minutes, during which he paused frequently. He produced either from his pocket or from the writing pad a second sheet of paper. When the decedent finished writing, he affixed his signature to the top sheet and Mrs. Morrison and Mr. Hanck signed it as witnesses. While decedent was writing on the top sheet, Mr. Hanck observed that he "consulted with" some other paper while he was writing on the top sheet on the tablet and that the other sheet was underneath it; that decedent "had something under the top piece of paper on the tablet but it was not apparent whether he was writing on it or studying