Auer v. Dunleavy

DRAPER, P. J. Three holographic documents were admitted to probate as wills of decedent. Contestants attack the order only as to the third document.

The two earlier writings, both dated in 1954, contain the preliminary statements so often thought by laymen to be appropriate to wills, and clearly are testamentary instruments. These wills left decedent’s home in Tamalpais Valley to contestant Dunleavy, his niece; $700 to respondent, Mrs. Auer; and the remaining personal property in equal shares to his five nieces and nephews, one of whom joined Mrs. Dunleavy in this contest. Mrs. Auer was named executrix in each.

The third document is dated April 27, 1961, and reads “This is to certify that I give Joseph Auer and Mrs. Regina Auer Lots 10-11 and 12 House and all Improvements. Block 7 Little City Farms Tamalpais Valley Marin County California, with the understanding that I live here”. Mr. Kane died May 24,1963.

Appellants contend that no testamentary intent is shown, and that the document therefore cannot be admitted to probate.

Although extrinsic evidence was admitted, it was uncontradicted, and thus we must independently determine whether the third holograph was executed with testamentary intent (Parsons v. Bristol Development Co., 62 Cal.2d 861, 866 [44 Cal.Rptr. 767, 402 P.2d 839]). Mr. Kane was about 85 when he wrote this document. Mr. and Mrs. Auer had been neighbors of his in Marin County. For many years, he had dinner with them every night. In 1954, the Auers moved to San Francisco, but continued to visit Mr. Kane at his home once or twice each week. For the 10 years before his death, Mr. Kane was crippled. Mr. and Mrs. Auer did his shopping and banking for him. After Mr. Auer’s death, in November 1961, Mrs. Auer continued to perform these services. Decedent’s niece, Mrs. Dunleavy, had not seen .him since 1949 or 1950. Before his final illness, Mr. Kane had told Mrs. Auer to look in the bureau drawer “if something happens.” When he was hospitalized May 8, 1963, Mrs. Auer went to his house and found in the bureau drawer the disputed document and one of the 1954 wills. She told Mr. Kane that she had found the wills, and he made no comment.

Appellants argue that the document on its face shows that it was intended as an inter vivos transfer, and not as a will. Since it was never delivered, it could not be effective as a deed and thus, say appellants, it is wholly ineffective.

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