Estate of Holmes

233 Cal.App.2d 464 (1965) Estate of ALBERT F. HOLMES, Deceased. ZELMA JEWELL, Individually and as Administratrix, etc., Plaintiff and Respondent,

v.

BEATRICE V. DAWSON, Defendant and Appellant.

Civ. No. 22013. California Court of Appeals. First Dist., Div. Three.

Apr. 6, 1965. James C. Travis and Peter R. Vitrano for Defendant and Appellant.

Faulkner, Sheehan & Wiseman, Charles J. Wiseman and Wallace Sheehan for Plaintiff and Respondent.

DRAPER, P. J.

This appeal presents two questions. Does the evidence support the finding that sale of decedent's home was the result of undue influence? If so, does the sale work an ademption of a devise of that property?

Albert F. Holmes was a retired cost accountant. In 1955, during his wife's last illness, he employed a neighbor, Mrs. Dawson, as housekeeper. Upon Mrs. Holmes' death in 1956, Albert inherited the home. Mrs. Dawson continued as housekeeper. In October 1959, Albert suffered a stroke, and in November entered a rest home. Shortly before his stroke, he had deposited funds in a savings account in the name of Mrs. Dawson and himself, as joint tenants, so that she might have access to his funds in case of emergency. Holographic will, dated April 19, 1959, devised his "house and furnishings" in San Francisco to his brother-in-law, Harold Jewell, and Mrs. Jewell. The residue of his estate was left to Mrs. Dawson. In 1960, Albert discussed the sale of his home with Mrs. Dawson. In early January 1961, she arranged a listing of the house for sale. The broker called upon Albert at the rest home several times. Each call was by appointment arranged by Mrs. Dawson and she was present at each meeting between Albert and the broker, but did not participate in their discussions of the sale. An offer was soon made and [466] accepted, deed was executed by Albert, and the net sale price of some $15,000 was paid to Albert January 13, 1961. It was deposited in the joint tenancy account. On January 16, at Albert's direction, cashier's check for $4,000 was sent to Mr. and Mrs. Jewell, and one for $1,000 to another sister-in-law. Albert suffered another stroke January 19, 1961 and died January 26. It is conceded that decedent reposed complete trust and confidence in Mrs. Dawson, and it was found that a confidential relationship existed between them. The house in issue came to decedent's wife in part because of relinquishment by her brother, Mr. Jewell, of his interest as an heir. Decedent was 84 years old when he died. There is medical evidence that in June of 1960, and for several years before, decedent had suffered from cerebral arteriosclerosis, and that this and his condition of senile dementia were irreversible and progressive ailments. There was also contrary medical evidence.