Dreger v. American Heart Ass'n

LILLIE, J. Eileen Dreger, claiming to be the daughter of the deceased, Isabelle Lipovsky, instituted heirship proceedings to adjudicate her claim as a pretermitted heir under section 90, Probate Code. Appellant herein, American Heart Association, Inc., residuary legatee under the will, opposed the motion. The trial court found that Eileen is the daughter of decedent; that decedent had one other child, a son, Gareth Desmond Winton; that the omission to provide for Eileen in the will was unintentional; and that Eileen is entitled to distribution of one-half of the estate. Decree was entered accordingly; American Heart Association, Inc., appeals therefrom.

In her will executed March 29, 1963, and filed for probate on May 16, 1963, Isabelle Lipovsky, also known as Eliza Milne Lipovsky, mentioned various individual legatees; she named as residuary legatee the American Heart Association, Inc. She did not mention her daughter, Eileen Dreger, by name but declared in paragraph “Fifth: Except as otherwise provided in this Will, I have intentionally and with full knowledge omitted to provide for my heirs, including my son, Gabeth Desmond Winton.” (Notice of hearing of petition to determine heirship was mailed to Winton at Okalla Prison, New Westminster, B.C.; while he was released prior to receipt thereof, he is in no manner involved in these proceedings.)

Eileen, a resident of Vancouver, B.C., was not present and did not testify at the hearing. Beceived in evidence (Exh. 2-A) was a certified photostatic copy of Particulars of Birth showing that on February 1, 1920, in Vancouver, British Columbia, one Eileen Eliza Winton was born to Alexander Winton and Eliza Milne (Name and maiden surname of mother), both born in Scotland. Exhibit 2-B, certified photostatic copy of Begistration of Marriage, shows that on June 24, 1944, Herman Dreger married one Eileen Eliza Winton, age 24, born in Vancouver, B.C., Canada, to Alexander Winton and Eliza Milne (maiden name of mother), both born in Scotland. Exhibit 3 is Certificate of Death showing that Isabelle Lipovsky, a widow, died May 7, 1963, in Santa Barbara; that she was born in Scotland on October 2, 1901, to William Milne and Eliza Duncan, both born in Scotland; and that she was a citizen of Canada. While Affidavit of Eileen Eliza Dreger was marked Exhibit 2 for identification, it was not received in evidence.

Over objection of appellant, the following evidence was received to show decedent’s lack of intent to omit Eileen [607]from her will—that at the time she executed the will the testatrix was laboring under a repression and not conscious of her daughter’s existence. Peter J. Samuelson, attorney at law, had known decedent since March 20, 1962, and saw her fairly regularly, representing her in minor matters; during the first three months she told him she wanted to make a will but was not certain of her dispositions, she spoke of doing something for her son, but thereafter never mentioned him again “in that context”; she “frequently,” four to six times, indicated “she had been greatly disappointed, been greatly disappointed by her family, . . .” Finally, she asked Samuelson to draft a will; he had several conversations with her concerning her family—he asked if she had any children; “She indicated that she had had this son, and initially, she was very reticent to identify him other—by name, other than just ‘my son.’ . . . But she did tell me in response to a rather vigorous questioning who he was by name, and that she reiterated that she wanted him to receive nothing under the Will ”; he had to pry the information from her; he asked her if she had children other than the son; “She never indicated she had any other children”; he questioned her again “vigorously” about the matter; “She is very equivocal. I might say in explanation, she—she would be reticent to the point of not even speaking in response to the question, perhaps for a minute or two, and then stated that her family had disappointed her. And I asked her again about her children, other than the son. And she said, ‘No,’ with sort of finality that that is all, and that is the way she wished her property to be disposed of on her death.” She was not equivocal on other matters.