Brown v. Nicholas

Opinion

GATES, J.

Eleanor Brown appeals from the judgment that admitted to probate the two documents we attach hereto as an appendix, thereby pre

[1066]

cluding her from inheriting her adoptive mother’s estate which consisted of only the family residence valued by the inheritance tax referee at $32,500. Although argued both here and below under many different headings, the one determinative question presented is:

“May a formal will inadmissible in probate because of the false declarations made by each of its purported witnesses, nonetheless be given effect by treating it as if the testatrix had intended it to be a holographic instrument?”

Appellant’s testimony, which was unchallenged, established that though she and her mother had the same name they were not actually related, a fact appellant discovered only after her mother’s death. It appears that appellant’s mother and respondent Geraldine Nicholas, the mother’s sister, were at least 78 years old at the time of the mother’s death. Throughout her life the mother had led appellant to believe appellant was actually her granddaughter, whom the mother had adopted following the death of her own daughter.

Until early 1979, appellant had lived at home, attending school, working part time and caring for her mother. During the mother’s extended illness appellant took her to visit her doctor “a couple of times a month.” In mid-February of 1979, however, appellant, having obtained full-time employment, decided to move. A week or two prior thereto, appellant had met her aunt, the respondent, for the first time. Respondent resides in New Orleans, Louisiana and had come to California only for a visit.

Appellant’s decision to live by herself offended her mother. Therefore, the mother composed the two documents that form the basis for this proceeding, although concededly not on January 1, 1979, the date shown on their face. The first, a formal will that failed to mention appellant, and the second, a “To Whom It May Concern” letter that expressed the mother’s anger and purported to explain why the will read as it did.

Appellant further testified without contradiction or challenge that after respondent had returned to New Orleans, appellant’s mother “apologized and we made up and that was the last I heard about it [her mother’s initial displeasure] until after she died.” During the remaining months of her mother’s life appellant continued to care for her as she had done previously. That is to say, appellant would visit her mother every weekend, cash her social security check for her, purchase her groceries, etc., etc.