Franc v. Bank of America National Trust & Savings Ass'n

YORK, P. J. This is an appeal by contestants from an order dismissing their petition for revocation of the probate of the last will and testament of Flora V. Lewis, deceased, after motion for nonsuit made on behalf of respondents was granted by the trial court at the close of contestants’ case.

The record herein reveals that on June 5,1942, immediately following the death of her husband, Flora V. Lewis executed a will in which she appointed appellant Louis B. Franc, a friend of long standing, as executor thereof, and after making bequests to relatives and friends, she provided that appellants Louis B, Franc and Mary A. Franc should each receive 25 per cent of her residuary estate. This first will was destroyed at the direction of testatrix by attorney Edward Hervey, who drew it for her, and on June 15, 1942, Mrs. Lewis executed a new will in which she reduced the disposition to appellants by 2y2 per cent respectively, which percentage was added to the disposition made by testatrix to another legatee.

On August 1, 1942, Mrs. Lewis executed another will bequeathing sums of money to relatives and friends, devised her home to respondent Sadie Lou Kramer, who was also made [482]residuary legatee, and appointed respondent Bank of America as executor. No mention was made in said will of contestants and appellants Louis B. Franc and Mary A. Franc.

Mrs. Lewis died on September 28, 1942, and on October 2, 1942, respondent banking association filed its petition for probate of the will of August 1st. Thereafter, Amelia 0. Kramer, sister of testatrix, filed her petition in opposition to probate and on December 10, 1942, a stipulation for a dismissal with prejudice of the contest of said Amelia 0. Kramer was filed; the said will of August 1, 1942, was admitted to probate, and letters testamentary were issued to respondent bank.

On March 3, 1943, appellants filed the instant petition for revocation of the probate of said will of August 1, 1942, on the ground that the execution thereof was procured by the undue influence of respondent Sadie Lou Kramer.

The answers of respondents admitted that appellants were legatees and devisees under the will of June 15, 1942, denied the allegations of undue influence, and as a separate defense alleged that appellants had actual notice in time to have joined in the contest before probate of Amelia 0. Kramer.