Foster v. Foster

WARNE, J. pro tem.* This is an appeal from an order denying a motion for change of venue, and overruling appellant’s objections to the jurisdiction of the trial court.

The deceased, Mary Ellen Foster, died at a convalescent home in Sacramento at the age of 81 years. Two of her sons, the respondents herein, offered for probate in the county of Sacramento her last will and testament, wherein they were named as coexecutors. Another son, the appellant, opposed the petition for probate and made a motion for change of venue to the county of Yolo on the ground that at the time of decedent’s death she was a resident of that county. (Prob. Code, § 301.) It is uncontradicted that for many years prior to June, 1957, the decedent had been a resident and a taxpayer of the county of Yolo, although she maintained two inactive savings accounts in banks in Sacramento. In May or June, 1957, decedent suffered a heart attack and as the result thereof was confined in a hospital located in Woodland, Yolo County, known as the Woodland Clinic, for treatment. During her treatment at the Woodland Clinic, she told her son, L. B. Foster, one of the respondents herein, that she would no longer be able to take care of herself or live alone in her home at Woodland and requested that she live with him at his home in Sacramento. Her request was granted and she was taken to her son’s home in Sacramento, where she stayed until January 3,1958, when she entered Sutter Hospital in Sacramento. Thereafter she was placed in a convalescent home in Sacramento, where she remained until the time of her death. Up to the time of her death decedent was registered as a voter in Yolo County, although it does not appear that she voted at any [316]election in Yolo County after coming to Sacramento; she also maintained her checking account in a bank in Woodland and made no disposition of her home in that city. Her tax bills were sent to her Woodland home, and there is no evidence of a notification of change of address having been given to the tax collector or various firms and persons with whom she transacted business, such as her insurance agent, the Pacific Gas and Electric Company, or the Woodland branch of the American Trust Company. However, the affidavit of L. B. Foster, one of the respondents, shows that after decedent came to stay with him she expressed the wish to employ a practical nurse to care for her in Woodland; but after inquiries were made as to the cost, she determined it would be too expensive and stated she knew she would never be able to return to Woodland and requested that he rent or sell her home in that city. This testimony was corroborated by affidavits of employees in his home. Although there was evidence to the contrary, the trial court resolved the conflict by finding that the decedent was a resident of the county of Sacramento at the time of her death and that jurisdiction vested in the superior court in and for the county of Sacramento for the probating of said estate. Hence appellant’s motion to transfer the estate proceedings to Yolo County was denied, and his objections to jurisdiction were overruled.