Estate of McCarty

211 Cal.App.2d 23 (1962) Estate of EUNICE L. McCARTY, Deceased. JULIUS LUOMA, Plaintiff and Respondent,

v.

THE FIRST CHURCH OF CHRIST, SCIENTIST, BOSTON, MASSACHUSETTS, Defendant and Appellant; LAWRENCE DOYLE et al., Proponents and Respondents.

Civ. No. 20493. California Court of Appeals. First Dist., Div. Two.

Dec. 18, 1962. Lillick, Geary, Wheat, Adams & Charles and Robert R. Vayssie for Defendant and Appellant.

Donahue, Richards & Gallagher and James H. Riggs for Plaintiff and Respondent.

William H. Quinn for Proponents and Respondents.

SHOEMAKER, J.

This is an appeal from a judgment admitting to probate a formal will and denying probate of a holographic codicil. Appellant, The First Church of Christ, Scientist, in Boston, Massachusetts, is the residual legatee named in the codicil to the will of Eunice L. McCarty. Respondent Julius Luoma, the testatrix' brother, is devised $10,000 under the will, but only $1.00 under the codicil.

The testatrix, Eunice McCarty, died in Alameda County on August 9, 1960. The Bank of America National Trust and Savings Association, named as executor of the will, duly filed a petition for probate of will and codicil and for issuance of letters testamentary. Respondent Luoma opposed [25] probate of the codicil on the ground that it was not executed in the form required by law. Appellant The First Church of Christ, Scientist, answered, denying that the codicil was invalid and praying that it be admitted to probate.

[1a] The undisputed facts disclose that the will and codicil were found in a single envelope on the decedent's closet shelf shortly after her death. On the face of the envelope was written "Eunice L. McCarty Last Will." The will is a typewritten, witnessed document bearing the date April 16, 1957. The codicil is a separate handwritten page bearing the date July 23, 1959. At the top of the formal will appear certain notations in the decedent's handwriting. [fn. 1] In one color of ink appear the words, "This will has been changed May 26, 1958," "Copy adtechet [sic] to this," and the signature "Eunice McCarty" underlined once. In a different ink color appear the words "Have changes [sic] this last will July 23, 1959." "Have changed this will July 23--1959 my own handwritten will adtechet [sic]." Also in this second ink color appear an additional underlining of the signature and lines striking out the words, "This will has been changed May 26, 1958." [fn. 2]