Smith v. Hart

PEEK, P. J. Jim Smith, proponent and sole beneficiary of a holographic instrument, appeals from the judgment of [375]nonsuit and from the order appointing James C. Hart the administrator of the estate of Robert C. Lampkin.

Robert Lampkin, who had never been married and had no children, was 60 years of age, retired, and living alone in a small house that he owned. Smith, who also lived alone, was 68 years of age and a dealer in junk. He had been a friend of Lampkin’s since 1932 and had been in the habit of stopping daily to visit with Lampkin. On the 25th of January 1960, Lampkin asked Smith to come into his house. He then gave him the instrument in question. The following day Smith stopped by Lampkin’s home and receiving no response from Lampkin, he returned to his home, obtained the instrument, and went to the sheriff’s office. Two deputies returned with Smith to the Lampkin home and found Lampkin dead.

Smith petitioned for letters of administration and for probate of the holographic instrument he had received from Lampkin. Contestants, two brothers and seven nieces and nephews, filed a petition for letters of administration and requested that their petition be heard on the same date as that of Smith.

At the hearing the court considered the following written instrument offered by Smith for probate:

‘‘Stockton, Calif 1-25-60.

“to Whom it May

Consern

“I here_by do give it Jim Smith, who live at 3444 Phelp St. all of the Junk around here in my Cabin and Yard and old Cars and Every thing.

“R. C. Lampkin 3252 Sharps Lane 550-12-6842-A Social Secuerity”

Respondents contested the admission of this instrument on the ground that the instrument was not testamentary in character.

The court determined that since the instrument was not ambiguous on its face (that decedent intended to make a present gift), the statement made by Lampkin to Smith when he delivered the instrument, “Here, Jim, here’s a will I write you, take it and put it in your pocket,” was inadmissible to show decedent’s intent as to the character of the instrument, and was, therefore, stricken. The court granted the motion [376]