In re the Estate of Arnold

The contestants of the will of Harriet M. Arnold, deceased, appeal from a judgment of the court below granting a nonsuit and dismissing the proceedings in opposi- - tion to the probate of the will of the deceased, executed April 25, 1903, and from the subsequent orders admitting said will to probate and appointing executors. The appellants assign as errors the granting of the motion for nonsuit, and a number of rulings excluding and admitting evidence.

We think the judgment of nonsuit was erroneous. In determining whether or not in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury the same rules apply, as in civil eases. Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in' favor of the contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true, and if contradictory evidence has been given it must be disregarded. If there is any substantial evidence tending to prove in favor of the contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on the merits. (Vermont etc. Co. v. Declez, 135 Cal. 579 , [ 87 Am. St. Rep. 143 , 67 Pac. 1057 ]; Freese v. Hibernia Sav. and L. Soc., 139 Cal. 392 , [ 73 Pac. 172 ]; Hanley v. California etc. Co., 127 Cal. 237 , [ 59 Pac. 577 ]; Ferris v. Baker, 127 Cal. 522 , [ 59 Pac. 937 ]; Goldstone v. Merchants etc. Co., 123 Cal 625 , [ 56 Pac. 776 ]; Zilmer v. Gerichten, 111 Cal. 73 , [ 43 Pac. 408 ];

The petition for the probate of the will and for letters testamentary was filed by William H. Leonard, Charles W. Buker, and C. A. Scott, who are the persons named in the will as executors. The testatrix died childless at the age of over eighty years, leaving surviving as her next of kin her sisters, Mrs. Buker, aged seventy-eight years; Mrs. Wetterson, aged seventy-five years, and Mrs. Wheelock, aged sixty-eight years; and two children of a deceased brother,—namely, William H. Leonard and Frank T. Leonard. Mrs. Wetterson has no child; Mrs. Buker has but one child,—namely, the proponent Charles W. Buker; Mrs. Wheelock has two children, Frances W. Rosenheim and Benjamin A. Wheelock. Alfred F. Rosenheim is the husband of Frances W. Rosenheim. The estate of the deceased testatrix is conceded to be worth at least one hundred and forty thousand dollars, and practically all of it was derived by her from the estate of her deceased husband, Benjamin R. Arnold, who died in 1898, a resident of San Diego County. The proposed will left seven eighths of the stock in Pratt, Read & Company, a corporation, which comprised the principal part of the estate, to William H. Leonard, as sole trustee, in trust for the use of the three sisters and a nephew, Frank T. Leonard, during their respective lives, with remainder absolutely to certain named relatives. Under a former will, executed on April 7,1902 ,similar trusts had been declared, but the property was to be converted into money, and Alfred F. Rosenheim was named as trustee, and as co-executor and co-trustee with Charles W. Buker. The former will also gave small ■ specific bequests to Alfred F. Rosenheim, and a legacy of one thousand dollars to Alice C. Westgate in trust for charitable uses.' A contest of the proposed will was filed by Alfred F. Rosenheim, Frances W. Rosenheim, and Louise A. Wheelock jointly, and Alice C. Westgate intervened and filed a separate contest.

The principal grounds of opposition to the probate of the will were that its execution was procured by means of the undue influence of William H. Leonard, exercised over the testatrix for that purpose, and by means of fraud practiced on her by him.

It is asserted that Leonard himself believed that the legal •effect of the instruments creating the trusts in Rosenheim was as he represented it to be. Even if he did believe this to be the true construction, it would not necessarily alter the case. If he was acting in bad faith for the purpose of procuring the •execution of the new will, the fact that he actually believed to be true some of the false representations by which he obtained the undue influence required, would not make the "transaction an innocent one, nor render a will so procured valid.

Before the trial the contestants caused the deposition of William H. Leonard to be taken in the cause before a notary public in San Diego, who was also a stenographer and took -down the deposition in shorthand, afterwards transcribing it into typewriting. At the time of the trial Leonard was present, and the deposition was duly signed, certified, and on file The contestants did not call him as a witness, nor read the ■deposition, or any part thereof, in evidence. They pursued the somewhat unusual course of producing the notary as a -witness and causing her to testify before the jury to certain

Complaint is made of the exclusion by the court, upon objections by the proponents, of evidence of a number of other

The court should have allowed the testimony offered by the contestants to show the extent and character of the estate of Mrs. Arnold committed to the charge of Mr. Rosenheim, as agent and trustee, prior to the making of the disputed will, together with the causes which led her to give him the power of attorney, and the general nature and character of the business done by him for her after her husband’s death and prior to the revocation of the power in April, 1903, including her consultations with him as late as March, 1903. The decision of the questions at issue depended largely on the degree of confidence and trust reposed in Rosenheim by Mrs. Arnold prior to the advent of Mr. Leonard, and upon the faithfulness and good faith of Rosenheim as steward of her affairs, and whether or not he was deserving of her confidence and trust, or was “crooked,” as Leonard suggested to her, and also whether or not she was accustomed to attend to her business herself, or was capable of it without assistance, and on her affection and disposition toward Rosenheim. This evidence would have assisted in arriving at the truth on these subjects, and if favorable to Rosenheim would have been material to the case of the contestants. And after the court permitted the proponents, apparently for the purpose of showing Rosenheim’s bad faith in receiving more than his services were worth, to introduce evidence that she had given him a large amount of valuable stock as compensation for his services aforesaid, the evidence of the character and value of the property and of the services named became proper to rebut the imputation of bad faith and dishonesty on his part. Too much detail need not have been allowed, but the court - should have permitted sufficient evidence on the subject to put the jury in a position to judge fairly of the previously existing conditions. These propositions embrace a large number of the rulings complained of.

The reasons for Mrs. Arnold’s custom of having Rosenheim prepare and sign, as her attorney in fact, the cheeks used by her to pay her current bills, as stated by her at the time she began the custom, would tend to prove her mental condition or business capacity at the time, and proof of such statements by her should have been allowed. Evidence of her complaints of failing eyesight and other bodily ailments as far back as the year 1900 was not too remote and should have been admitted to show her physical condition and dependence on others. (Donnelly v. Rees, 141 Cal. 63 , [ 74 Pac. 433 ].)

The feelings of Leonard toward Rosenheim and the testatrix, and other facts and circumstances tending to show a motive inducing him to desire the execution of the new will, or that he was acting in bad faith in creating suspicion of Rosenheim in the mind of the testatrix, were relevant on the issue of fraud and undue influence, although such motive and bad faith would not of themselves be sufficient proof thereof. (Estate of Betts, 113 Iowa, 111 , [ 84 N. W. 979 ]; Coghill v. Kennedy, 119 Ala. 657 , [ 24 South. 459 ]; McLaughlin v. McDevitt, 63 N. Y. 219 ; 1 Wigmore on Evidence, sec. 396.) For these reasons the court should not have stricken out the evidence that Leonard knew that Mr. Rippey had been Mrs. Arnold’s legal adviser at the time he called in another attorney, and should have allowed the testimony showing his refusal to answer the question whether or not after he had •obtained control of Mrs. Arnold’s money he had appropriated four hundred dollars of it to his own use by her direction, and his statements in regard to the monthly allowance made to him by the testatrix, his issuing of checks upon her account in favor of his own family, after he became her attorney in fact, his activity in instituting proceedings against Rosenheim immediately after the last will was made, his declarations to his sister-in-law that he would break any will of Mrs. Arnold that did not provide for him, and the evidence that

It was proper to show that the will of 1900 was substantially the same as that of 1902, and to explain the changes made by the latter. This would tend to show a more permanent and fixed state of mind of the testatrix with regard to her general plan for the disposition and administration of her estate as declared by those wills prior to the execution of the disputed will, and bring out in a stronger light the significance of any changes therefrom in the will of 1903 in controversy, and to raise a greater probability that the latter was the product of fraud and undue influence. For the same purpose the contestants should have been permitted to show that shortly before the time of making the last will the testatrix was still as much interested and as favorably disposed as formerly toward the children’s home carried on by Mrs. Westgate, and toward the Young Men’s Christian Association. Both of these institutions were given legacies by the will of 1902, and neither was mentioned in the will in dispute.

It is claimed by the proponents that the declarations and acts of the testatrix not constituting a part of the res gestee and not made at the very time of the execution of the will in dispute, are not admissible to prove the exercise of the undue influence or the fraud charged. This proposition may be conceded to be correct. There is, however, a distinction between the effect of such declarations and acts to prove the undue influence and fraud, and their effect to prove the state of mind of the testatrix. The distinction is clearly stated in the case of In re Calkins, 112 Cal. 301 , [ 44 Pac. 577 ], The court say: “The external facts constituting the exercise of undue influence must be established by other evidence than the declarations of the testator. His declarations are incompetent to show either that the influence was exercised, or that

Minnie Schaffnett, the stenographer who testified to portions of the examination of Leonard at the time he gave his deposition before referred to, was not allowed to testify to the questions put to Leonard by the attorney who conducted the examination, but was required to confine her testimony to the answers made by Leonard. C. H. Rippey also testified as a witness concerning the conversations between himself and Mrs. Arnold, the testatrix. He was not allowed to give the statements made by him to Mrs. Arnold in the course of the conversation, and his testimony was confined to the replies

The declarations of Leonard made in his answers to the questions put to him in taking the deposition above mentioned, were, as we have stated, not introduced in the form of a deposition, but were proven by secondary evidence, consisting of the testimony of the stenographer who took them down in shorthand. Therefore, though they were made under oath, they did not have effect, and were not admitted as the testimony of Leonard, but as his mere declarations or admissions against his interest. Consequently, they were incompetent evidence of statements made by Mrs. Buker in regard to the execution of a trust deed by Mrs. Arnold and Rosenheim, or of any independent facts in his own favor, brought out in his cross-examination of Miss Schaffnett, or afterward, and not connected with his declarations introduced by the contestants on her examination-in-chief. The objections of the contestants to the evidence of such declarations should have been sustained.

The evidence that the deed of Mrs. Arnold to Rosenheim, and his declaration of trust in her favor were read over to her at the time they were executed on April 14, 1902, and her statements at that time as to their purpose and effect were competent and relevant to show her failing memory and weakness of intellect in April, 1903, when she seemed to have forgotten them entirely, and appeared to be unable to comprehend them when they were again read to her.

The contestants should have been allowed to prove, if they could, that the deed to Rosenheim was made absolute in form, because of the fact that a person negotiating with Mr. Scott for the purchase of some of the San Diego real estate had expressed an objection to accepting a deed executed by an

A number of other rulings are complained of upon which we express no opinion. They may not occur upon another trial, and the evidence excluded or admitted thereby was not of serious importance.

The judgment and orders appealed from are reversed and the cause remanded for a new trial.

Angellotti, J., and Van Dyke, J., concurred.

Hearing in Bank denied.