Estate of Sharff

219 Cal.App.2d 128 (1963) 33 Cal. Rptr. 52 Estate of MAE R. SHARFF, Deceased.

DAVID DENSON et al., Plaintiffs and Appellants,

v.

EDNA M. HILL, as Executrix, etc., et al., Defendants and Respondents. (Two Cases.)

Docket Nos. 26913, 26914. Court of Appeals of California, Second District, Division Four.

August 8, 1963. [130] David C. Marcus for Plaintiffs and Appellants.

Harrison Weil, David Sefman, Pacht, Ross, Warne & Bernhard, Henry J. Shames and Harvey Zuckman for Defendants and Respondents.

KINGSLEY, J.

Plaintiffs instituted two suits against the Estate of Mae R. Sharff, and others. Suit number 723066 was for breach of a written contract to make a will, and suit number P-427590 was pursuant to section 850 of the Probate Code, for specific performance of a written contract to convey real and personal property. Due to the related nature of these two actions they were tried together by the court without a jury. Judgment was entered for defendants, and plaintiffs now appeal.

[1] The deceased, Mae R. Sharff, was an elderly widow who was a resident of Los Angeles, California. Some time in the early part of May 1958 deceased made a trip to New York City and visited plaintiffs, who were her niece and nephew. After her return to California, in the latter part of May 1958, there was extensive correspondence, both by telephone and letter, between the deceased and plaintiffs. In the course of this correspondence, plaintiffs expressed their desire to eventually come to California. Deceased, both by letter and telephone, was insistent that plaintiffs immediately come to California and live with her, rent free, in her house (which she referred to as her "Haven of Joy"). Plaintiffs, however, were somewhat hesitant at immediately moving to California because their ties, both business and social, were in New York City. Deceased, seeking their immediate departure from New York City, lent plaintiffs $2,500 to help in the winding up of their affairs, thereby expediting their move to California. Finally, in December of 1958, plaintiffs arrived in Los Angeles and immediately commenced living with the deceased in her house. In January of 1959, deceased moved out of her house because a feud had erupted between her and plaintiffs. Deceased commenced staying at a friend's house in Santa Monica, California. In March of 1959, deceased instituted an unlawful detainer action against plaintiffs in order to get them out of her house. A judgment by default was entered in favor of deceased in that action, and plaintiffs moved out. In January 1960 the deceased died testate leaving