Estate of Moulton v. Boyd

DRAPER, J.

This is an appeal from judgment in a will contest.

Appellant sought probate of a will dated October 29, 1951, under which he and his wife were the principal beneficiaries. Respondents opposed admission of this will, and offered for probate a holographic will dated January 22, 1954, and a holographic codicil dated January 8, 1955. Appellant filed his written contest and an amendment thereto. The ease was tried to the court without a jury upon these pleadings and respondents’ answers. Although appellant pleaded and offered evidence upon the issues of incompetency, fraud, deceit, duress and undue influence, his closing brief states that he has abandoned all these grounds, and now appeals from the judgment adverse to him solely upon the issue raised by the amendment to his contest, to which he refers as the “special” or “additional” grounds of opposition to the holographic documents.

In' that opposition, he alleges that the will and codicil offered by respondents were “made and given by . . . testator and accepted by the said proponents upon the condition of and with the understanding and agreement that said proponents would work for, care and maintain said testator, . . . during her lifetime, without compensation” other than that provided in the will and codicil; that in fact respondents did not care for decedent after April 2, 1955 (she died July 14, 1958) ; that respondents filed an action against decedent’s guardian late in 1955 and recovered judgment for the reasonable value of such care and maintenance as they had afforded to decedent; and that by reason of these facts a ‘ ‘ fraud

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was perpetrated upon” decedent, and respondents “waived and forfeited” all rights under will and codicil.

The 1954 will consists of seven pages, consecutively numbered by testatrix. After stating the document to be her last will, revoking all former wills, and directing payment of her debts, she devises and bequeaths “all of my estate” to respondents. Then follows the statement “I have asked my friends, the Boyds to care for me and to accept me in their home, and to take care of my personal and business affairs as I have no close heirs.” Page 3 contains a clause leaving a nominal sum to any person who may contest the will, the appointment of respondents as executors and, at the bottom of the page, “Signed this twenty-second day of January 1954. Emma Chase Moulton.” Then follow four pages (numbered 4 through 7 by testatrix) of bequests of money, stock or personal effects to named beneficiaries, including appellant and his wife, respondent Alice Boyd and respondent Robert Boyd. The final provision reads: “To my darling friend, Alice Boyd, I leave Twenty-five (25) shares of American Tel and Tel. Stock. For her love and devotion and care of me I also leave her all my personal effects and property and any monies in which we share joint tenancy. This is my wish.” At the end of this last page, numbered 7, appears the signature of testatrix and the words “Oakland Calif. Jan. 22nd 1954.”