Latour v. Ford

1. It is claimed that the trial court erred in its rulings in giving and refusing instructions. The contention in this behalf is largely based on the theory urged by learned counsel for contestant that the burden of proof was on the proponent, especially upon the issues as to the due execution of the will. The trial court refused instructions drawn upon this theory, and instructed the jury that the burden of proof was upon the contestants, and that they must prove the issue of fact by a preponderance of evidence. This action of the trial court is fully sustained by the statute and the decisions of this court. Contestant concedes that it is probably true that, in the first instance, the burden of proof on an issue as to undue influence is - on the contestant. This concession is warranted by the decisions, as would also be a concession that the same is true as to an issue on the question of mental unsoundness. (Estate of Black, 132 Cal. 392 ; Estate of Scott, 128 Cal. 57 ; Estate of Wilson, 117 Cal. 270 ; Estate of Gregory, 133 Cal. 131 .) But no distinction is made by the statute between such issues and issues as to the due execution and attestation of the will. The issues that may be raised by the written opposition of the contestant, and the answer thereto of the proponent, are stated in section 1312 of the Code of Civil Procedure, and among them we find issues as to mental competency, freedom from undue influence, etc., .and due execution and attestation. The same section provides that on the trial of any of such issues “the contestant •is plaintiff and the petitioner is defendant.” In Estate

The only testimony, therefore, material to any ground of contest is that contained in the depositions of the subscribing witnesses to the will. Those depositions, having been taken to be used for all purposes on the trial, contained some evidence relevant to the issues made by the opposition and answer. It is claimed that the evidence was of such a character as to shift the burden of proof, and require the giving of certain requested instructions. One of these was to the effect that if the decedent was unable to speak articulately, and the only communication made by him to those around him consisted of signs made by him, the burden was on the proponent to prove that the decedent fully understood the meaning of the questions asked him and the purport and effect of the document, and consciously and purposely made signs which he intended to be understood as affirmative answers, and another stated that under such circumstances it was the duty of those engaged in the preparation of the will to put such questions or make such suggestions as would recall to his mind each particular person who, by reason of relationship or otherwise, had any natural claim upon his

As to the eighth requested instruction, it is sufficient to say that the mere fact that the testator was so enfeebled by sickness as to be unable to intelligently communicate his thoughts to others, except by signs in answer to questions, is not sufficient to shift the burden of proof as to mental competency. The only remaining requested instruction that demands consideration is that as to undue influence, wherein it was sought to have the court instruct the jury that if they found that the execution of the will was procured by the proponent, that she was not related to the testator or otherwise a natural object of his bounty, that at the time of the execution he was, through illness, entirely helpless and wholly dependent upon her for the care and attention which he required, and that, by this will, he excluded his wife and relatives from any share of his estate, then the burden of proof is upon the proponent to show that she exerted no undue influence over him which caused him to execute that will. Under the few facts appearing in the record, it is

There was no testimony that the proponent had ever personally made any suggestion to the testator as to the manner in which he should dispose of his property, and the only testimony as to her procuring the execution of the will was, that she sent for a lawyer and was, with others, present at the time of the execution of the will, and the lawyer asked him if he wanted to leave his property to proponent. It is also true that he was at the time, through illness, helpless and in proponent’s home. We are of the opinion that these facts alone are not sufficient to entitle contestant to complain of the action of the court in refusing to give the instruction, especially in view of the fact that by her objection she prevented the proponent from making any further showing in support of the will, after she had closed her own case without proffering any testimony in support of any of her grounds of opposition. It must further be borne in mind that the will as executed was entirely in accord with repeated declarations of testator as to his intentions, before he was stricken with his last illness, to each of the subscribing witnesses.

2. It is claimed that the evidence is insufficient to justify the verdict. After a careful examination of the record, we are satisfied that there is sufficient evidence, in the absence of any counter-showing, to sustain the findings of the jury.

It may also properly be said that this objection comes with very poor grace from the contestant, who, by her objection, prevented the introduction of testimony in support of the will, which was properly offered after contestant had closed her case. In view of our conclusion as to the sufficiency of the evidence, it is unnecessary to consider a question

3. It is further contended that the deceased was not a resident of the city and county of San Francisco at the time of his death, and that therefore the court below had no jurisdiction. There was no issue of fact made as to this in the lower court, and the objection was made for the first time after the order admitting the will to probate had been entered, by a specification in the bill of exceptions. While it is true that the jurisdiction to prove wills and grant letters testamentary is exclusively in the superior court of the county of which decedent was a resident at the time of his death, it is for the court to which the petition is addressed to determine from the evidence introduced before it whether or not the deceased did, as a matter of fact, reside in the county. Its finding in the matter is conclusive on the question of jurisdiction, except upon appeal, and cannot be collaterally attacked (see Estate of Griffith, 84 Cal. 107 ; In re Eickhoff, 101 Cal. 604 ), whatever the fact may be as to residence, and herein lies the difference between this case and the cases cited by contestant, wherein the court had no power to entertain the proceeding or make the order. It has been held in this state that the superior court of the county in which the petition for letters of administration is first filed has exclusive jurisdiction to determine the question as to the residence of the decedent, and the courts of other counties must abide the determination of that court, which is reviewable only upon appeal. Here, it is true, the attack upon the jurisdiction of the court is made upon appeal, but it is made by a party who, without objection, submitted her contest to the court below, and who never made any objection to the jurisdiction of the court, or in any way questioned the truth of the allegation contained in the petition that the decedent was a resident of the city and county of San Francisco. While it is true that non-residence is not a ground of contest, it is clear that contestant could have legally made her objection on that ground in the lower court. This court will not upon appeal review the conclusions of a trial court as to facts essential to its jurisdiction, concerning which such court was vested with the power to hear and determine, at the instance

The remaining points made by contestant do not call for extended notice. Under the provisions of the will, the court had the power to direct the issuance of letters testamentary without requiring a bond, and we cannot say that it abused its discretion in so doing. The same may be said as to the action -of the court in awarding costs against the contestant. We cannot see how contestant could have suffered any injury by being denied a separate trial as to her contest.

The order appealed from is affirmed.

Shaw, J., Van Dyke, J., and McFarland, J., concurred.

I dissent. One of the issues made by the contest was as to the due execution, publication, and attestation of the alleged will.

It was shown at the trial that a few days before his death the decedent suffered a -stroke of paralysis which rendered him entirely speechless and almost completely helpless, so that his only means of communication with those about him was by signs—as by giving his hand in answer to a question, which was understood to signify assent. While in this condition a lawyer called in by proponent drew up the alleged will in conformity with his understanding of the signs made by decedent in response to questions asked him concerning the disposition of his estate. When the document was completed the lawyer signed it for the deceased, in pursuance of his supposed directions given in the manner above described.

The issue upon the execution of the will was submitted to the jury in the form of three questions, as follows:—

“1. Was the. instrument now propounded by Caroline Ford for probate as the last will and testament of Felix Latour, deceased, signed by said Felix Latour?

“2. Was the name of said Felix Latour subscribed to said instrument by some other person, in the presence of said Felix Latour and by his direction; and if so, by whom ?

“3. Did the said Felix Latour, at the time of the subscribing of said instrument, declare to the attesting witnesses that said instrument was his will?”

and respecting them the court instructed the jury as follows :—

“Upon the trial of the contest of a will, the contestant is called the plaintiff, and the proponent of the will is called the defendant,—that is to say, in the present proceeding Catherine Latour and the others who are contesting are, in law, the plaintiffs, and Caroline Ford, the proponent of the will, is, in law, the defendant.

“The burden of proof is upon the plaintiffs, meaning the contestants. They must prove the issues of fact by a preponderance of evidence, and the term, as thus used, does not mean numerical preponderance. You are to consider not merely the quantity, but also the quality, of the evidence presented to you.”

The contestant requested, and the court refused to give an instruction as follows:—

“The next two questions propounded to you are as to whether or not this alleged will was subscribed by some other person in the presence of the decedent and by his direction, and as to whether or not the decedent declared to the attesting witnesses that the instrument was his will. As to these questions, the burden of proof is on the proponent; and you should not answer them affirmatively, unless facts sufficient for the purpose have been proved, by evidence of a character which produces moral certainty or conviction in an unprejudiced mind.”

Other instructions, involving the same propositions, were given and refused, but these which I have quoted sufficiently present the question as to which I am unable to concur in the conclusion of the court.

The decisions heretofore made upon this point have been to the effect that the contestant of a will, merely because the statute designates him as the plaintiff on the trial of the contest (Code Civ. Proc., sec. 1312), must prove not only his affirmative allegations, but must also support his negative allegations by a preponderance of evidence, but in so holding the court, whenever the-question has been treated as a matter

“A paper was offered for probate as the will of deceased. A nephew files objections and contests the probate, on the grounds that deceased did not sign the paper; that the signature is a forgery; that deceased was not of sound and disposing mind.

“A jury was impaneled and sworn to try the issues.

“Without calling any witnesses or offering any proof, contestant claimed that the proponent must, in the first instance, prove the will, before the contestant could be called upon to offer proof. Proponent claimed that the contestant must first make out his case before the proponent could be called upon to reply to it.

“By the Court: Under the last clause of section 1312, C. C. P., the contestant is plaintiff and the proponent is, defendant. Under section 607, the trial must proceed in the order, viz.: plaintiff must produce the evidence on his part,

The assumption which forms the basis of this opinion that the contestant of a will is plaintiff as to every separate issue made by the contest is either entirely unwarranted by the statute or, if warranted, is entirely inconsequential. The statute (Code Civ. Proc., sec. 1312) does not say that the contestant is plaintiff as to the issues, but only that on the trial of the contest he is the plaintiff. If this makes him plaintiff as to the separate issues, then, upon the same principle, the holder of a promissory note must be the plaintiff as to every issue that can be made in an action on the note; for certainly he is plaintiff on the trial of the action. If, therefore, one is plaintiff as to the separate issues, so is the-other, and so is every plaintiff in every action or special proceeding. But assuming this to be so, does the consequence follow that he must “go forward” with his evidence upon every separate issue? Is the assumption, in other words, of any consequence or relevancy whatever upon the question of burden of proof? To this question the statute and numerous decisions of this court plainly answer, No!

Section 607 of the Code of Civil Procedure, cited by Judge Myrick, prescribes the order of procedure upon the trial of an action, and merely says that “The plaintiff, after stating the issue and his case, must produce the evidence on his part.''

Our statute is to the same effect. Every proponent of a will must, among other things, allege its due execution, and even in the absence of a contest no will can be admitted to probate without affirmative proof that it was executed in all particulars as required by law and by a person of sound mind. If a will is contested, stricter proof on these grounds is required, for it is expressly provided by statute that while a will may be established by the testimony of one subscribing witness, if not contested (Code Civ. Proc., sec. 1308), all the subscribing witnesses must be called and examined as to a contested will, unless the death, absence, or insanity of one or more of them is satisfactorily shown. (Code Civ. Proc., sec. 1315.) And before the alleged will can be admitted to probate the court must be satisfied upon the proofs taken or from the facts found by the jury that the will was duly executed and that the testator was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence. (Code Civ. Proc., sec. 1317.) In the face of these provisions, it certainly cannot be claimed that there is a presumption of testacy, and, if not, it is difficult to perceive any reason for requiring the contestant of a will to go forward with proof of that which is presumed in the absence of proof,—viz., that there is no will.

With respect to such issues as insanity, undue influence, ffaud, or duress, section 1981 of the Code of Civil Procedure supports the case of the proponent of the will in the same way* and for the same reason that it sustains the contestant upon the issue of due execution, publication, and attestation. And, therefore, though the proponent must, in conformity to the rule of pleading, allege soundness of mind and absence of duress, etc., he is exempt by the rule of evidence from the necessity of proving these allegations until some evidence is adduced tending to overthrow the presumption in favor of sanity and against duress, fraud, and undue influence.

Is it, then, an essential part of the statement of the right or title upon which a contestant’s cause of action is founded.

The nearest analogy to the contest of a will is a case of interpleader or of intervention, where several parties are asserting conflicting claims to the same thing, and where each is required to make his own claim good. When a man dies his estate passes under the control of the probate court as a fund for the satisfaction of his creditors and for distribution of the residue to those succeeding to his title. If a will is offered for probate, the court, by its notices and citation, calls upon the heirs, devisees, and legatees to interplead. Any person interested in the estate adversely to the dispositions of the will may contest the probate, and no one else can. (Code Civ. Proc., sec. 1307.) The contestant must therefore allege facts showing that the estate, or an interest in it, devolves upon him as heir or as executor, devisee, or legatee under another will, in case the contested will is not proven. The court, then, has before it two conflicting claims to the same fund,—one by the proponent, and one by the contestant. This fact, and the consequence that necessarily flows from it,—viz., that the proof of the opposing claims must be offered in some orderly sequence,—explains and justifies the provision of the statute that on the trial of the contest the contestant is plaintiff. For his relationship may be contested by the proponent, as it was in this case, and as it frequently is. We have had numerous instances of late years in which the claim of the contestant has been based upon a disputed adoption, or legitimation, or marriage, and these issues have involved long and embittered controversies—their tiial overshadowing all other issues in

If it be claimed that we should adhere to our former rulings simply because they have established a rule of practice, I answer that the principle of stare decisis does not protect a vicious rule of practice, when the utmost evil effect of setting it aside would be to require a new trial of doubtful issues in a few pending cases, and when the advantage would be that in innumerable cases yet to arise the courts and the parties would be freed from the trammels of a rule the mere statement of which involves its condemnation, not only upon the score of convenience, but upon considerations of substantial justice.

But if the rule as we have made it must continue to prevail, with the absurd consequence that when a will is contested, and when the evidence of its execution is doubtful or conflicting, it must nevertheless be admitted to probate, unless the contestant has proved non-execution by preponderating evidence, we should at least assume the blame ourselves, and not continue to lay it on the legislature by insisting that the law is so written. The statute law is plain enough, and entirely consistent with a course of procedure in the trial of a contest

This reasonable course of procedure—a procedure perfectly consistent with the code provisions, and the same that is pursued in other jurisdictions and in all analogous cases— was widely departed from in the trial of this contest. No evidence as to the residence of the decedent in San Francisco seems to have been offered until a week after the trial of the contest was ended and the verdict of the jury recorded. The evidence as to the claim of the contestant to be the widow of the decedent came in at the end of the trial, and this issue, though made by the pleadings, was never submitted to the jury or found by the court. And, finally, the jury were instructed that they must find that the will was duly executed, unless the contestant had proved by a preponderance of evidence that it was not duly executed.

I think, also, that the court erred in requiring no bond of the executrix. The entire estate consists of money, amounting to twenty thousand dollars. All of this goes into the hands of the executrix without any security whatever to the contestant, who, as widow, is entitled to one half of it, and under an antenuptial contract seems to have a just claim to the whole of it. The statute commits to the probate judge the power in his discretion to require a bond, notwithstanding a direction of the testator to the contrary. It assumes, of course, that his power is to be exercised, when necessary, for the protection of those who are entitled to protection. If the testator undertakes to dispose of nothing which is not entirely his own, no one would have a right to demand a bond of his executor where he has chosen to dispense with it. But where it appears that his estate is largely indebted, I think it would be abuse of discretion to disregard the demand of his creditors for adequate security, if the character of the estate was such as to admit of embezzlement or waste. In this case the testator has given to the uncontrolled custody of an executrix pecuniarily irresponsible twenty thousand dollars in money, half of which certainly, and all of which possibly, belongs to his widow,—money entirely beyond his testamentary power, and which he has no right to expose to loss. I can conceive of no case calling more loudly for the exercise of the discretion of the court to require a bond of the executrix.

Henshaw, J., and Lorigan, J., concurred in the dissenting opinion.

Rehearing denied.

In my opinion the petition for rehearing should be denied. A number of briefs from several interested parties have been filed in support of the petition for rehearing in this case, and they suggest some further consideration of the procedure involved in the probate of wills. In every case of a contest of a will before" probate there are, in law and in fact, two distinct, and to some extent independent, proceedings before the court. One is the petition of the proponent for the admission of the will to probate. The other is the contest, an affirmative proceeding, based on the written grounds of opposition filed by the contestant. There is no pleading on the part of the contestant that is addressed to the petition, or that is in the nature of an answer to it. The petition stands unanswered, and is to be disposed of by the court in much the same manner as if there were no contest. The contest is inaugurated by the filing of the “written grounds of opposition,” in which must be set forth the facts upon which the contestant bases his assertion that the will is invalid. These may be either the lack of due execution, the mental unsoundness of the testator at the time of its execution, or the procurement of its execution by menace, duress, undue influence, or fraud. To this pleading on the part of' the contestant the proponent, or other person interested, files, an answer, and thus raises an issue for trial. It is only where an issue as to the 'execution of the will is presented that any difficulty can arise as to the burden of proof.

The hearing of these two proceedings must come at the same time, and it is this circumstance which causes the confusion about the proper method of procedure. When the contest comes after probate, as it may do under section 1327 of the Code of Civil Procedure, this matter is much simpler, and it would not be seriously contended that the contestant should not then have the burden of proof. At that time the proceeding on the petition has been already heard and determined, and its distinct character is easily perceived. There is, 'however, no essential difference in this respect between a contest before probate and one subsequent thereto. In either case the hearing of the formal proceeding

The suggestion is made that if the contestant has the burden of proving-that the will was not executed, it may happen that the jury or court may admit a will to probate where the evidence on each side is evenly balanced. This must be conceded; but it is nothing more than may happen in any case where negative allegations constitute an essential part of the statement of the right on which the cause of a party is founded. In all such cases under section 1869 of the Code of Civil Procedure the party asserting the negative must prove it. It would not be possible in any case to obtain probate of a will without proof of its execution, for, as above stated, the preliminary proof, whether it comes in before or after the evidence of the contestant, must be sufficient to make a prima facie case; else the court must refuse probate.

The provision of section 1869 of the Code of Civil Procedure, that a party asserting a negative need not prove it where his negative consists of the denial of the existence of a document, the custody of which belongs to the opposite party, has no application to denials of the due execution or attestation of a document. That exception applies only to an issue as to the material existence of the document itself. It is founded upon the proposition that a person to whom the custody of a document belongs usually is in possession or control of it, and therefore can more easily prove its existence than the other party can prove its non-existence. It is non-existence in point of fact- that is referred to in the final clause of section 1869, and not that sort of existence in legal effect which, as to dispositive documents, comes alone from due execution.

Neither section 1716 nor 1981 of the Code of Civil Procedure are in conflict with these conclusions. They merely state or refer to the well-known general rule that the burden of proof is on the party holding the affirmative of an issue.