Pizzorno v. Herendeen

This is an appeal from a judgment rendered on a jury verdict awarding the entire estate of Frank Rivolo to the respondent, in a proceeding to determine heirship under section 1080 of the Probate Code. The question on appeal is whether the respondent, Dorothy Rivolo Herendeen, is entitled to the entire estate of Frank Rivolo as his equitably adopted daughter or only one-fifth of the estate as his niece. Appellants, who are the collateral heirs of the decedent and his predeceased spouse, concede that the respondent is entitled to one-fifth of the estate as the niece of Frank Rivolo, but argue that she is not entitled to the remaining four-fifths of the estate, as she was never formally adopted and has not proved her claim based on an oral contract of adoption. The contentions on appeal are that the respondent’s cause of action was barred by the statute of frauds and that the trial court gave prejudicially erroneous instructions to the jury.

The appeal is on a settled statement which reveals the following facts: The respondent, hereafter referred to as Dorothy, was born in 1916; her father died in 1918, her mother in 1924, leaving her an orphan. After she spent a night or two with…