Henderson v. Snow

BURKE, J. In this heirship proceeding, two of the heirs at law of decedent, Mrs. Barnes, appeal from an order determining that under the provisions of her will Robert Erie Henderson, a nephew named in the will, is entitled to distribution of the entire estate. As will appear, we have concluded that the trial court erred in its conclusion that the will effectively disposed of testatrix’ property. The order appealed from must therefore be reversed.

Mrs. Barnes died in September 1962 leaving a will, dated June 21, 1949, which was admitted to probate in January 1963. The will was prepared by an attorney, and declares that the testatrix was married, had no children, and intended by the will “to dispose of all my property.”1 The will next provides that all of the testatrix ’ property is to go to her husband,2 and that in the event of the simultaneous death of testatrix and her husband the entire estate shall go to Robert Erie Henderson,3 petitioner in this heirship proceeding. A no contest clause4 and a disinheritance clause5 follow. Tes[582]tatrix’ husband is named as executor, with petitioner as alternate. The will contains no residuary clause, and no dis-positive clauses except those already mentioned and found in paragraphs Fifth and Sixth.

Carlton Barnes, the husband of the testatrix, predeceased her by more than five years. She left no lineal descendants, but did leave as her heirs at law two brothers, two sisters, and a nephew and nieces who are children of deceased brothers and sisters. Petitioner, a nephew, is not an heir at law, as his mother (the sister of testatrix) survives. (Prob. Code, § 225.)

Petitioner contends that under a proper construction of the will he is entitled to succeed to the entire estate. He is opposed by certain of the heirs at law. Over their objection the trial court received testimony from petitioner’s mother concerning the relationship between petitioner and testatrix at the time of execution of the will. The witness stated that at about the time the will was executed (some 13 years before testatrix’ death), petitioner was 29 years old, petitioner visited at the home of testatrix three or four times each week and a close relationship existed between them, testatrix was very fond of petitioner and often introduced him as her son, the two made outward displays of affection towards each other, testatrix spent many holidays at petitioner’s home, and the other relatives did not visit testatrix; further, that testatrix was married in the .year 1905 but had no children.