Nunes v. Nunes

AGEE, J. pro tem.* The will of decedent devised “unto Joe E. Nunes, a nephew of mine, a one-quarter interest in my ranch ...” Both appellant and respondent fitted this description of the devisee. Appellant is the son of a half brother of the decedent. Respondent is a second cousin of the decedent, but was usually referred to by the latter as “my nephew,” and respondent addressed decedent as “uncle.”

Appellant filed a petition to determine who was entitled to the devise. At the first trial, appellant obtained a directed verdict and judgment in his favor. This judgment was reversed on appeal upon the ground that there was a latent ambiguity in the will as to the identity of the devisee and that extrinsic evidence as to such identity was erroneously excluded. (Estate of Nunes, 123 Cal.App.2d 150 [266 P.2d 574]; hearing denied by Supreme Court.)

Respondent prevailed on the second trial, and this appeal followed. The first question is whether the proof establishes respondent’s claim of latent ambiguity as to identity. If it does, extrinsic evidence is admissible. (Estate of Nunes, supra.) Many witnesses testified that decedent referred to respondent as “my nephew.” Among these were a radio announcer, a nurse who cared for decedent, a fruit packer, a fruit canner, neighbors, old friends, a former tenant on decedent’s ranch, a building contractor who had dealings with decedent, a woman who was raised from childhood by decedent and his wife, a former laborer who had worked on the ranch, an insurance broker who handled decedent’s insurance, a retired police officer, and the lawyer who had handled decedent’s legal affairs for many years and who drew the will in question.

Respondent conducted his business under the name “Joe E. Nunes”; he signed checks with that name and many of these checks had been seen by decedent; in fact, some of these [746]checks were payable to decedent; respondent’s mail box at the ranch where he lived carried that name; he signed a deed of trust in favor of decedent in that name; he made up tax returns in that name; his automobile registration certificates and other documents so designated him.

It will thus be seen that there is ample evidence to support a finding (implied by the verdict) that decedent identified respondent as “Joe E. Nunes, a nephew of mine.”

On the other hand, appellant is a nephew of decedent without any dispute. However, he was best known as Joseph Nunes or Joseph E. Nunes. At the trial he testified that his name was “Joseph E. Nunes” and that he did most of his work under this name. His birth certificate named him as “Joseph.” His trucks had “Joseph E. Nunes” printed on them, his mail box carried that name, and his radial trucking permit was issued in that name. His authorized bank signature and his telephone listing were in that name.