Wheelock v. Wheelock

DORAN, J. From an agreed Statement of Facts upon which the case was submitted to the trial court, it appears that Jennie A. Thomas, died testate in Los Angeles on May 17, 1955. On July 1, 1955, the superior court “made its order admitting her last will and testament to probate, which will consisted of six (6) holographic writings dated respectively, June 30th, 1936, March 3d, 1947, May 16th, 1947, and undated and unsigned writing which is a part of the writing dated May 16th, 1947, October 16th, 1947, and January 5th, 1948. Decedent’s only sister, Laura Vogt, predeceased her, having died on April 2d, 1953. Decedent’s only heir at law is a first cousin on the paternal side, namely: Amy Elizabeth Thomas Lathrop, one of the claimants herein. She is also survived by Mrs. George Gray, a stranger, Erma Baker, a [616]first cousin once removed, and by the following named first cousins twice removed: Wayne Sanborn Wheelock, . . . and Muriel Older Horstman and Glenn E. Older, . . . . Mrs. George Gray and Erma Baker are the persons named to receive specific bequests in Article Third of the holographic writing of June 30th, 1936. Wayne Sanborn Wheelock, Muriel Older Horstman and Glenn E. Older are the survivors of the four children named to receive the residuary estate in the last paragraph of Article Third of the holographic writing of June 30th, 1936. Lizzie Webb, a stranger, also named to receive a specific bequest in Article Third of said holographic writing, predeceased decedent, having died April 27th, 1944.”

The agreed statement also recites that “All of the other claimants . . . are first cousins once removed and are not heirs at law pursuant to Section 226 of the Probate Code. The decedent had never married and left no husband, issue, parents, brothers or sisters, uncles or aunts surviving. Her predeceased sister, Laura Vogt, left no issue surviving.

“The sole question to be decided is whether or not the residuary provisions of Article Third of the holographic writing of June 30th, 1936 prevail and are effective and to what extent the decedent died intestate.”

The last holographic testamentary document, held effective by the trial court, reads as follows:

“Will of Jennie A. Thomas Jan. 5, 1948.

“I, Jennie A. Thomas, being of sound mind and without duress, do hereby will and bequest at my death all my property both personal and real to my sister, Laura H. Vogt, for her to have and hold to do whatsoever she may see fit with it.