Schmutzler v. Downen

Opinion

JEFFERSON, Acting P. J. Ruth Schmutzler appeals from a judgment of the trial court rendered on her petition to determine interests in the estate of Beulah M. Dillingham, ruling that the petitioner is entitled to receive under the will only the residence, furniture and clothing of the deceased.

Beulah M. Dillingham died on April 4, 1968, leaving an holographic will1 which was duly admitted to probate. When the named executor [709]declined to act, the public administrator was appointed and filed a petition for letters listing as heirs at law six adults, all of whom made claims and petitioned for a determination of heirship and distribution. Ruth Schmutzler, a good friend of the decedent, then filed a petition claiming that she was entitled to take the entire estate except for the amount of one specific bequest of $1,000 made to Mrs. Mable O’Dell.

The testatrix was an elderly woman who for a number of years immediately preceding her death had lived alone in a single family residence on 88th Place in Los Angeles which she owned. The testatrix’ mother had predeceased her; she had no children, and her only living relatives were first cousins who resided outside of California. During the last few years of her life the testatrix was ill and unable to care for herself alone. She had never been in close touch with her surviving relatives and her neighbors undertook to visit her home, take her to see the doctor, and help her with shopping and cooking.

The holographic will of the testatrix bequeathed to Ruth Schmutzler a gift of “house and content of furniture and clothing” and to Mable O’Dell the sum of $1,000. The testatrix left other assets, including a safety deposit box and its contents, which were not specifically disposed of by the will. In her petition to determine interest Ruth Schmutzler alleged that the testatrix intended to will her entire estate to petitioner. As a consequence the trial was bifurcated, all parties waived jury trial and the claim of Ruth Schmutzler was first determined.

Ruth Schmutzler testified concerning her relationship with the testatrix and the court admitted the testimony of a second witness, Mrs. Pearl A. Keene, for the sole purpose of showing the circumstances surrounding the execution of the will. (Prob. Code, § 105.) Mrs. Keene, who lived -across the street from the testatrix, had been her intimate acquaintance for over 30 years. She did not know Ruth Schmutzler, but the testatrix frequently spoke of Ruth and Mrs. Keene knew that Ruth often visited the house. The testatrix also received letters from a cousin and a woman who lived in Florida, and these letters Mrs. Keene often read aloud for her-.