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District Court of Appeal, First District, Division 2, California.


Civ. 13506.

Decided: January 19, 1948

Joseph A. Brown, of San Francisco, for appellant. Geo. M. Naus, of San Francisco, for respondent.

Petition for production and probate of an alleged will. The court ordered that the petition for production of will be denied and petitioner appeals.

Edward R. Brady died in San Francisco in February, 1933. His wife had predeceased him but he left a son, Edward T. Brady, and a stepson, Russell B. Adams. The latter and one Biggins, a trusted employee of deceased, were appointed administrators on a showing of intestacy. Final distribution and discharge were had in 1934, and the estate was closed in that year. The petition under review was filed twelve years after distribution.

Petitioner, Emma L. Cobby, is a sister of deceased. Her first petition, filed on January 25, 1946, independently under No. 101,995, alleges in part that Russell Adams on or about February 11, 1933, came into possession of the last will and testament of deceased, that petitioner and three others were beneficiaries under that will and that Adams suppressed the will; with prayer that he be required to produce that will, that it be admitted to probate and petitioner be appointed administratrix. Adams demurred. No disposition of this demurrer is on record. Shortly after this on February 13, 1946, petitioner filed a new petition in the old probate proceedings with the same allegations and prayer as the former petition adding that the substance of the will is that it gives to petitioner and the sister Loretta Ellen Brady each $100 per month for life and to the sister Mary L. Hyde $150 per month for life, the residue to the son Edward T. Brady.

The evidence in substance was as follows: A Miss Kerrigan testified that for nineteen and one-half years she had been secretary of the corporation Eureka Boiler Works, of which concern deceased was superintendent. She went over many wills, maybe eight or ten, with deceased which he had written in pencil, usually on yellow lined note paper. Some of them were dated but they were not signed. They were all in his handwriting. His signature was at the beginning of them, ‘I Edward R. Brady.’ His three sisters were always remembered. When Mr. Brady died all papers and money were turned over to Mr. William Metson, who was attorney for the Eureka Boiler Works and attorney for the estate. The morning of the death three or four, and in the following months at least four more, of these unsigned wills were found and turned over to Mr. Metson. Deceased wrote such wills from 1925 to 1933. Some he tore up. Some of these unsigned wills were in the books of the boiler works in which Mr. Brady figured jobs, in different books he worked on, or ‘they cropped up at different places.’ There were twelve on lined yeallow tablet sheets. They wre not dated. Later Mr. Biggins found a signed will in the upper ofice and brought it down to witness. That was around July or August, 1933. It was on yellow paper; it was dated with month, day and year. It was dated 1916. It was one sheet dated at top and signed at bottom. They showed it to the witness DeRosa. The following morning they turned it over to Mr. Adams. Mr. Adams said he would take it to Mr. Metson. Mrs. Gertrude Brady (wife of deceased) was the heir to that will, and his three sisters were in the will. She did not copy it but remembers it. Ralph Myers was appointed executor in it. Deceased's wife was to be his sole heir. He did not mention his son nor Russell Adams in it. The three sisters were left different monthly amounts, $50 and $75. The witness turned in her resignation to Mr. Adams in 1936 because Biggins who had been with the firm for forty years was made to leave. Mr. Biggins died three years before the trial. When she heard that Loretta Hyde, a niece of petitioner was sick and needed help, she asked, ‘Why don't they go after Russell Adams and Eddy Brady,’ and told that deceased left a will. That was in 1937. At that time Mr. Metson gave her various papers regarding the estate, some thirty or thirty-five, which she late gave to petitioner. Among them was one of the unsigned wills that was not dated; it was set up as a trust fund.

Lawrence A. DeRosa, certified accountant who used to audit the books of Eureka Boiler Works, was shown a document on yellow paper by Miss Kerrigan and Mr. Biggins. It was dated May or June, 1916, with a date he does not remember. It had a date at the top and deceased's signature at bottom. It was all written in deceased's handwriting. He saw two sheets of it, the first initialed, the second signed; the second was only half full; the top of both sheets were dated. He glanced through it; read about one-fourth. It said his sisters and his son and stepson should be his heirs, the estate to be divided as shown below. He does not remember that deceased's wife was mentioned although she died many years later, but there were two or three more involved in it of which the wife might have been one. He knows that the son and stepson were in. In 1940 Mr. Metson told him he had never received it from Mr. Adams, nothing but the original papers turned over.

Russell B. Adams, a stepson, testified that shortly after the death of Brady, Mr. Biggins and Miss Kerrigan informed him that they had found a will and handed a paper to him. He told them he would take it to Mr. Metson. It was written in the form of a will in deceased's handwriting on a yellow piece of paper. It had no date according to his recollection. It was written in pencil; it named some sisters and gave them, he thinks, in the same proportion as in certain notes written by deceased. The son of deceased was principal beneficiary. Adams himself was given $150 a month. It did not name an executor. He gave it to Mr. Metson one hour after he received it.

Esther H. Orr, secretary of Mr. William Metson at the time of the administration of the Brady estate, had all of the Brady papers except a few that were in the safe. There were numerous unsigned wills on yellow paper. They were handwritten with pencil, unsigned drafts. None was signed. She does not remember whether any was dated. Edward T. Brady, son of deceased, was the only heir at law. He never heard of a signed will of deceased.

On April 4, 1946, the trial court made an order in the old estate Matter, No. 63,691, ordering that attorneys of both parties should have access to the papers left by Mr. Metson and then under control of Mrs. Jafet Lindberg and P. H. McCrathy, attorney. On July 1, 1946, the attorneys declared that the search had uncovered nothing and submitted the matter. The only disposition is a minute order reading: ‘Heretofore submitted the court ordered Petn. of Emma L. Cobby for production of will be denied; evidence insufficient as to existence of will. 7/29/46.’

The order is in effect that the evidence was insufficient to prove that a will was executed as claimed by appellant and that accordingly the court could not order respondents to produce a will which was never in existence. The evidence amply supports the implied finding. One witness testified that the supposed will was in one sheet; another testified it was in two; one witness testified that the wife was ‘his sole heir’ and that the son and Adams were not mentioned; another witness testified that the son and step-son (Adams) were made the heirs with the sisters of deceased, but did not recall that the wife was mentioned in it. Another witness testified that the document referred to by these witnesses was by him handed to Mr. Metson, that it bore no date, that it made the son the principal heir and gave Adams $150 a month. This witness did not testify that the document was signed by deceased. This evidence is not of the type which would justify a reviewing court in setting aside the finding. The only witnesses who testified that they saw a signed will contradicted each other on so many essential points that they appear to have been speaking about two different documents. On such a record the finding of the trier of the facts is conclusive (Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868) and it would serve no purpose to discuss the authorities cited from other jurisdictions.

Appellant attacks the finding, or lack of finding, on the issues of execution and suppression of the alleged will. The order denying the petition recites, ‘evidence insufficient as to existence of will.’ Appellant reads ‘existence of will’ as meaning existence at the time of trial and argues that that factor has no bearing on a plea for probate of a ‘lost’ will. The issues are confused. Fairly construed the order of the trial court means that appellant failed to prove that such a will was executed or in existence at the time of death and that accordingly the respondents could not be charged with suppression of a will non-existent. The finding is in effect one that the allegations of the petition reciting execution and suppression of a will were untrue. By the same token if no will had been executed there was no ‘lost’ will subject to probate under section 350 of the Probate Code.

Order affirmed.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.

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