Robinson v. Nelle

NOURSE, P. J. This is an appeal from a judgment of the probate court admitting to probate an holographic will of Harriet N. Puller, dated April 7, 1927, and denying probate of a mutual will executed by the deceased and her predeceased husband in July, 1926. The appellants are the contestants of the holographic will and the proponents of the mutual will. The grounds of the contest were that the execution of the holographic will was procured through fraud and duress and that it did not dispose of any property of the deceased. Por these reasons it was contended that the holographic will did not revoke or modify the mutual will and therefore the contestants as proponents of the latter will were entitled to its admission to probate.

The respondent Prances R. Nelle, at the age of two years, was legally adopted by Clifford A. and Harriet N. Puller, who had no children of their own. She was reared and treated as their natural child, living continually with her foster parents until some time after her marriage. In November, 1926, Mr. Puller died at the age of about 90 years and thereafter Mrs. Puller lived the greater part of the time at the home of this respondent until her death in January, 1931. Some time in the year 1920 the Pullers transferred to this respondent certain real property estimated to be of the value of $4,500 and at that time Mrs. Nelle executed an agreement waiving further claim to their estate. In July, 1926, Mr. and Mrs. Puller executed the mutual will offered for probate by the appellants herein. This will covered an estate of about $22,000 under the terms of which Mrs. Nelle was to be given $500, her son Clifford $5,000, Mr. Puller’s relatives $7,000 and Mrs. Puller’s relatives $8,500. This mutual will was admitted to probate as the will of Mr. Puller and distribution was made to Mrs. Puller of an $8,500 note and mortgage and something over $500 in cash. Stock in the Southern California Edison Company, appraised at over $24,000, stood in the name of Mr. and Mrs. Puller as joint tenants and was not distributed under this will but was delivered to Mrs. Fuller upon a decree of court in a proceeding had to terminate the joint tenancy. Mrs. Fuller, [784]being then 90 years of age, created a trust covering this property and a Los Angeles bank was named as trustee. On December 13, 1926, Mrs. Fuller created a new trust in which Mrs. Nelle was given $5,000, Mr. Nelle $2,000, Clifford Nelle $4,000 and the residue of the estate, and a sister of Mrs. Fuller was given $4,000. On February 2, 1927, Mrs. Fuller terminated this trust and created a new one substantially carrying out the terms of the mutual will. On February 8, 1927, she changed the latter trust, substituting William Nelle in place of a second cousin. On April 6, 1927, she changed the trust again by adding $5,000 to Mrs. Nelle’s interest. On June 25, 1928, Mrs. Fuller withdrew all the property distributed to her from her husband’s estate, including the note and mortgage, and gave instructions to the bank to prepare a new trust. At the same time she made a gift to Mrs. Nelle of the $8,500 note and mortgage. Her instructions to create a new trust were not carried out and on August 2, 1928, she revoked the trust with the bank and created a new trust, naming Mrs. Nelle as trustee. The bank turned all the trust property over to Mrs. Nelle and at that time the stock certificates in the Southern California Edison Company were registered in the name of “Frances B. Nelle, trustee”. This trust was revoked by Mrs. Fuller a few days thereafter, but the stock certificates were permitted to remain in the name of “Frances B. Nelle, trustee”, until the death of Mrs. Fuller. Intermingled with these transactions several wills were executed by Mrs. Fuller and subsequently destroyed. She left intact, however, an holographic will dated April 7, 1927, and a formal typewritten revocation of the mutual will of herself and husband. This revocation was dated May 9, 1927, and was duly witnessed.