Earnest v. Brown

WOOD, J. Hans B. Swendsen died on March 23, 1940, leaving a holographic will in which all of his property, which [552]brings in an annual income of approximately $500, is given to Mrs. K. K. Earnest. Mrs. Earnest filed a petition asking to be appointed executrix of the will, claiming that she was named therein as executrix. The probate court admitted the will to probate but granted the petition of the public administrator of Los Angeles County to be appointed administrator with the will annexed. Prom the order making this appointment Mrs. Earnest has appealed.

Mrs. Earnest presented as the will of Mr. Swendsen two pieces of paper. On one of the papers the following appears: “Marts 9-1940 This is my last wish I hereby give to Mrs. K. K. Earnest of 2938 Wellington Road, L. A. Cal, my house and lot at 1019 South Kern Ave, my one acre with improvement, at 3301-3305 Delta Str San Gabriel Cal, also my personal property, and money I may have coming from Superior Oil, Co, The one aeree on Delta I owe to her as well as my Car for an old debt, that would amount to around 4000 00/00 Dollars. Signed H P Swendsen 3305 Delta Str L. A. Cal San Gabriel D. A. Mitchell 909 Sierra Bonita St San Gabriel Cal. Witness this 10 of Marts 1940 Witness This 10th Day of March 1940 Walter Pore 3301 South Delta Street San Gabriel, Calif.” The writing on this paper is in ink and with the exception of the names and addresses of the witnesses it is in the handwriting of decedent. On the other paper the following appears: “P. S. Mrs. K. K. Earnest is to act as her own Executrix widt out Bonds of any kind This is my wish”. The writing on this paper is in pencil and it also is in the handwriting of decedent. Concerning the two papers the court found that the “document” written in pencil is older in appearance than the other and is of a different type of paper, having been torn from a larger sheet; that an intention on the part of decedent that both documents constitute Ms will is not ascertainable from the documents themselves; that decedent called a witness to his house, “produced both of said documents, stated that they were his will, and affixed Ms signature to the document written in ink”.

There appears to be no conflict in the evidence. D. A. Mitchell testified that decedent, who was his neighbor, called the witness to decedent’s home on March 10, 1940, and stated to the witness that he, the decedent, wanted the witness to act as a witness to decedent’s will; that decedent then pro[553]