Fitzgerald v. Lyon

[639]

STONE, J.

This is an appeal from a decree determining interests in estate. Maud M. Lyon died testate on October 3, 1959. On August 7, 1959, she executed a will which had been prepared by her attorney at her request. The will reads as follows:

“Know At.t. Men by These Presents : That I, Maud M. Lyon1, a resident of the County of Tuolumne, State of California, of lawful age, do hereby make, publish and declare this to be my Last Will and Testament and I will and direct that my property shall vest as follows:

“First: I hereby revoke any and all former Wills or Codicils to Wills heretofore made by me.

“Second : I hereby direct that all my just debts and funeral expenses be paid first.

“Third : All of the rest, residue and remainder of my property of whatever kind or character and wheresoever situate, I hereby give, devise and bequeath to my nieces, Marjorie Starling, Vernice Martens, and my nephews, Alan G. Lyon, Harry Fitzgerald, Eberhardt Fitzgerald and Ralph Fitzgerald, share and share alike.

“Fourth: I hereby intentionally omit to provide and make no provision for any other relative or relatives and in the event that any person shall appear and contest this my Last Will and Testament and establish any right to claim inheritance from me, I hereby give, devise and bequeath such person or persons the sum of One Dollar ($1.00) as such person’s or persons’ sole share in my estate.

“Fifth : I hereby nominate, constitute and appoint Bank of America NT&SA as the Executor of this my Last Will and Testament.

“Witness my hand this 7th day of August, 1959.”

One week later, August 14, 1959, Mrs. Lyon gave her attorney instructions for the preparation of another will, but the second will was never drafted. On August 18,1959, Mrs. Lyon wrote a codicil to her will, placed it in an envelope and had it delivered to her attorney. The codicil reads as follows:

“I want this attached to my last will and testament recently

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