Kittrell v. Reese

California Court of Appeal Aug 30, 1951 No. Civ. No. 18225Published

Before: Drapeau

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Holding. The court held that the probate court's finding that the decedent's last will was duly executed was supported by the evidence and that the trial court did not abuse its discretion in denying a motion for a new trial based on newly discovered evidence.

Issues

Whether the evidence supported the probate court's finding that the decedent's last will was duly and properly executed.
Whether the trial court abused its discretion in denying a motion for a new trial based on newly discovered evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the probate court’s finding that the will admitted to probate was duly and properly executed, signed and published as decedent’s last will and testament is supported by the evidence.”

“The granting of a new trial upon the ground of newly discovered evidence is largely a matter of discretipn.”

“The action of the trial court in such cases will not be disturbed except upon a clear showing of abuse of discretion.”

DRAPEAU, J. During her last illness S. Ella Lucas made her will. After her death the will was offered for probate, and contest filed. The contest was heard by the court without a jury. Proof of due execution of the will was ample and sufficient.

Decedent was a widow, with no living issue; and, so far as the record shows, no heirs. Her only son served as an officer in the first world war and died in Sawtelle Veterans’ Hospital in 1935.

Contestant’s case may be summed up as follows: Decedent stated to several witnesses that she had a godchild, Jane Reese (who was no relative of the blood) to whom she wanted to will all her property. Decedent asked a real estate broker to prepare a will for her, leaving her property to her godchild. The broker prepared an extraordinary document, which, after it was signed by decedent, her godchild, two friends, and a notary public—who appended his jurat and seal—reads as follows:

“Los Angeles, Calif.

July 2, 1946

‘ ‘ To Whom It May Concern ;

“I will place everything I Possess into Jane Reese’s hands, (my GOD child.) I trust GODand agree that she’ll be benefituary in ease anything should happen to me before 1953. My properity, jewelsm finance & everything goes to her. The property’s address is 630 E. 52nd street, & 832 Upland Ave. San Pedro, California. The bank is located at Vernon Ave. & Avalon Blvd.

“I vow that she pay all bills, if anyone else should step in, I want her to take properity with all legal power and respect. I leave everything to my GOD child, Jane Reese, 741E. 51st street, Los Angeles, Calif.

‘ ‘ Sincerely V ours,

Ella Lucas

Jane Reese 741 E. 51 st

Edd N. Taylor 5030 McKinley Ave

Mae Murray 207 W Vernon Ave

“Subscribed and sworn to before me this 2 day of July 1946.

“Wynyard H. Ammons Notary in and for the County of Los Angeles, State of California”. (Seal)

[380]Proponent’s case may be summed up as follows: A little over three years after the real estate broker’s “will” was made, and while Mrs. Lucas was in the hospital suffering from her last illness, she asked her doctor to get a lawyer for her. This was done.

Kittrell v. Reese

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