140 Cal. App. 2d 744 | Cal. Ct. App. | 1956
The will of decedent devised “unto Joe E. Nunes, a nephew of mine, a one-quarter interest in my ranch ...” Both appellant and respondent fitted this description of the devisee. Appellant is the son of a half brother of the decedent. Respondent is a second cousin of the decedent, but was usually referred to by the latter as “my nephew,” and respondent addressed decedent as “uncle.”
Appellant filed a petition to determine who was entitled to the devise. At the first trial, appellant obtained a directed verdict and judgment in his favor. This judgment was reversed on appeal upon the ground that there was a latent ambiguity in the will as to the identity of the devisee and that extrinsic evidence as to such identity was erroneously excluded. (Estate of Nunes, 123 Cal.App.2d 150 [266 P.2d 574]; hearing denied by Supreme Court.)
Respondent prevailed on the second trial, and this appeal followed. The first question is whether the proof establishes respondent’s claim of latent ambiguity as to identity. If it does, extrinsic evidence is admissible. (Estate of Nunes, supra.) Many witnesses testified that decedent referred to respondent as “my nephew.” Among these were a radio announcer, a nurse who cared for decedent, a fruit packer, a fruit canner, neighbors, old friends, a former tenant on decedent’s ranch, a building contractor who had dealings with decedent, a woman who was raised from childhood by decedent and his wife, a former laborer who had worked on the ranch, an insurance broker who handled decedent’s insurance, a retired police officer, and the lawyer who had handled decedent’s legal affairs for many years and who drew the will in question.
Respondent conducted his business under the name “Joe E. Nunes”; he signed checks with that name and many of these checks had been seen by decedent; in fact, some of these
It will thus be seen that there is ample evidence to support a finding (implied by the verdict) that decedent identified respondent as “Joe E. Nunes, a nephew of mine.”
On the other hand, appellant is a nephew of decedent without any dispute. However, he was best known as Joseph Nunes or Joseph E. Nunes. At the trial he testified that his name was “Joseph E. Nunes” and that he did most of his work under this name. His birth certificate named him as “Joseph.” His trucks had “Joseph E. Nunes” printed on them, his mail box carried that name, and his radial trucking permit was issued in that name. His authorized bank signature and his telephone listing were in that name.
The foregoing is by no means an exhaustive summary of the evidence on identity. As was held on the prior appeal, “Joseph” and “Joe” are not necessarily the same name and the word “nephew” does not necessarily describe a legal blood relationship.
Evidence contrary to that favoring respondent is not set out herein because it simply raised a conflict for the trier of facts to determine, which conflict was determined in favor of respondent.
On the previous trial there was an offer of proof made on behalf of respondent herein which included an offer to prove that in Portugal, the native country of decedent, it is the common custom and practice to call a second cousin, nephew or uncle. No evidence of this was produced at the second trial. Appellant says that this court on the prior appeal “gave importance” to this offer and that “Had the Portuguese custom been proved, there may still be some basis to argue that additional explanatory evidence might be admitted.” A reading of the prior decision shows that the custom was only a part of the evidence offered to establish the latent ambiguity and that the holding that such evidence could prove such ambiguity was not dependent upon this one part alone.
Appellant next complains of the refusal of proffered evidence showing fraud by respondent in his dealings with decedent. In determining whether respondent was the “Joe” described in the will by decedent it was, of course, pertinent
Appellant concludes by arguing that the evidence is insufficient to sustain the verdict. From what has already been said herein, it is clear that (1) a latent ambiguity as to identity was established, (2) extrinsic evidence was therefore admissible to establish identity, and (3) such extrinsic evidence was amply sufficient to sustain the verdict. It would serve no useful purpose to summarize the testimony, covering
The judgment is affirmed.
Peters, P. J., and Bray, J., concurred.
A petition for a rehearing was denied May 16, 1956, and appellant’s petition for a hearing by the Supreme Court was denied June 6, 1956.
Assigned by Chairman of Judicial Council.