Hartung v. Holmes

This is a contest of a will after probate. The ground of contest is that at the time of the making of the will the testatrix lacked testamentary capacity by reason of insanity. The contestant is Marie Hartung, a sister of the deceased; the contestee is Louise Holmes, another sister of deceased, and the principal beneficiary under the will. The contest was heard before a jury, and at the conclusion of the contestant’s case the court granted a nonsuit.

It appeared from the testimony that Alice L. Chevallier at the time of her death was between thirty and thirty-five years of age and unmarried. For the twelve years immediately preceding the thirtieth day of March, 1907, she had been in the employ of the Ville de Paris, a large store in the city of Los Angeles. She had proved trustworthy and competent and had been advanced to the responsible position of collecting the moneys from the cash registers of the store, with their accompanying tags, and turning them in to the treasurer. About six o’clock in the afternoon of the thirtieth of March she was called before certain of the directors and officers of the establishment and was accused of having misappropriated funds which she had collected. She was specifically charged with having taken from two hundred and fifty

“4-14-07.

“Louise Dear:

"In the safe you will find money enough to cover my burial expenses, you will also find with this note directions for opening same, I would like you to give Grace my black watch & pin also my bracelet, all my other effects, personal and otherwise, I leave to you and you alone to keep or dispose of, as you see fit, all my papers are in the German-American Bank vault and in the safe; my accounts are in the Security Savings, American Savings, & 1st Nat’l Banks.

“Alice L. Chevallier.”

This is the instrument which was admitted to probate as a will and over which this contest is waged. The estate which Miss Chevallier left consisted wholly of personal property of the estimated value of twenty thousand dollars. The contestant, Mrs. Hartung, had always been on friendly terms with her deceased sister, but it was with the principal beneficiary under the will, Mrs. Holmes, that Miss Chevallier resided and most intimately associated. Mrs. Hartung’s family consisted, beside herself," of her husband and grown son. Her husband was vice-president of one bank, her son a clerk

From the evidence it appears that Miss Chevallier was a well-developed, well-nourished woman, whose health, until the latter years of her life, had been extremely good. In 1903 she went to a hospital, where was performed an abdominal operation, doubtless for the removal of a diseased ovary. She returned to her work in due course after the operation, though some time after she again complained of pains in her back, frequently took medicines, declared that she was suffering physically from an affection of the other ovary, and was preparing to undergo another operation for the removal of that ovary, or a cyst upon it. Such w^s her physical condition at the time of her dismissal from the store. But, by all the testimony, this physical condition neither affected her personal appearance nor her mental characteristics. She continued to do her work efficiently and well. The theory of the contestant is that' the history of the case, thus set forth, is sufficient to establish the lack of testamentary capacity which the law requires. The argument addressed to the evidence is that probably by reason of her ovarian troubles and the taking of drugs and medicines her mind became affected; that as evidence of this disordered mind were her peculations of moneys from the firm of which she had been an honest and trusted employee for many years; that no reason, since she was worth twenty thousand dollars, is shown why she should have been tempted .to take the money; that her thefts having been discovered, the brooding remorse of an already unbalanced mind impelled her to suicide, and that immediately before destroying herself, and under these circumstances, she wrote the testamentary document from which the law will withhold its approval. In support of this theory the contestant introduced the expert opinion of one alienist who, in answer to a hypothetical question purporting to embody the facts in evidence, declared his belief that Miss Chevallier at the time of the making of the will was insane.

Such being the evidence, appellant contends: 1. That a motion for a nonsuit is not permissible in a contest over the probate of a will; and 2. That, if permissible, still there was such evidence on behalf of the contestant as to make it error for the court to withdraw the case from the considera

The second proposition,—namely, that the evidence was such as to have demanded of the trial court that it deny the motion for a nonsuit and submit the cause to the determination of the jury, presents a more serious question. We approach its consideration with the following declaration of what we regard to be the true rule governing the conduct of a trial judge. The difference between the duties of a judge in granting a nonsuit or directing a verdict is learnedly and historically discussed by Justice Lurton in Mt. Adams etc. Ry. Co. v. Lowery, 74 Fed. 463 , [ 20 C. C. A. 596 ]. A reference to that case avoids the necessity of elaborate presentation. It will suffice here to say that, quoting the language of Mr. Justice Barry in Dublin etc. Railroad Co. v. Slattery, 3 App. Cas. 1155, the guide of the trial court in granting or refusing to grant a motion for a nonsuit, is this: “When once a plaintiff has adduced such evidence as if uneontradicted would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury.” If there be sufficient evidence to justify the presentation of the case to the jury and the jury fall into an error in weighing and deciding upon the evidence the remedy then is by motion for a new trial. The distinction is pointed out in Schuchardt v. Allens, 1 Wall. 359 , [ 17 L. Ed. 642 ], as follows: “If the evidence be not sufficient to warrant

The matter for consideration thus resolves itself into this: Would the evidence offered by contestant, if presented to the jury, have warranted a verdict in her favor. If so, the court erred in granting the nonsuit, since it was contestant’s right in the first instance to have the jury pass upon the issues. If, however, the evidence presented by. contestant, viewed in the most favorable light which could logically and legally be brought to bear upon it, would not have supported a verdict in her favor, the court performed its duty in refusing to submit it to the jury.

In considering the evidence it is important, preliminarily, to observe that it is not every form of insanity, not every mental departure from the normal, which destroys an otherwise valid testamentary act. The rule of law is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld. Thus, the wills of aged and infirm people, of people sick in mind as well as in body, are always upheld, if, notwithstanding their enfeeblement, testamentary capacity is shown. So, again, it may be well and perhaps soundly reasoned that all persons who commit crime and that all persons who commit suicide are aberrant, abnormal, and therefore insane. But such is not the insanity which the law has in mind. It must be an insanity of one of two forms, either insanity of such broad character as to establish mental incompetency generally, or some specific and narrower form of insanity, under which the testator is the victim of some hallucination or delusion.

Considering the evidence here in the light of these elementary principles it may be conceded that the testatrix was unquestionably in great distress and agony of mind at the time she wrote her will and that it was written in contemplation of self-destruction. It may be conceded," moreover, that it was abnormal for a trusted employee, in the circumstances of this testatrix, to have suddenly begun a series of thefts, upon so large a scale that discovery could not long be postponed. It may be conceded further that the testatrix’s ovarian troubles may have affected her mind and, finally,- it may be conceded that in the generality of cases, at least, the normal mind is repelled by the thought of suicide. But all this having been conceded—and no more may be—the evidence still falls far short of showing that the testamentary act was affected in the slightest degree by any or by all of these abnormalities. The positive evidence of a sound and disposing mind is overwhelming. The conduct, manner, actions of the deceased, the language of the will itself, all afford high and uncontradicted evidence of full capacity for the testamentary disposition of property. Nor is it made to appear that, to the slightest degree, the will was the product of any diseased mind or imaginings. She remembers one sister by a gift of a personal memento and to the other, evidently the favored sister with whom for years she had been living, she leaves the rest of her estate. Such disposition, so far from giving evidence of testamentary incapacity, was not even unnatural. There is not in the evidence the slightest

That the document admitted to probate as a will was of a testamentary character sufficient to entitle it to probate is beyond the need of argument. Appellant urges, however, that, being holographic in character, it lacks an essential to a complete holographic will, in that it was not dated. (Civ. Code, sec. 1277.) It will be noted that the date is given as follows: “4-14-07.” In Estate of Lakemeyer, 135 Cal. 28 , [ 87 Am. St. Rep. 96 , 66 Pac. 961 ] r an holographic will bearing the date “New York, Nov. 22, 97,” was involved. In holding that the instrument was sufficiently dated within the meaning of the statute, this court said: “The object of writing is merely to express the thought or intention of the writer; and this may be as effectually done by abbreviations or words or other ■conventional signs, if commonly used and generally recognized, as by words fully written or spoken. . . . And under the head of abbreviations are to be included all conventional

It is contended that the court erred in- its rulings upon the reception and rejection of evidence. We have examined each specification with care. They do not require separate discussion. As to some it is sufficient to say that the court very properly ruled, since the sole question was her capacity to make a will by reason of unsoundness of mind, that the ■declarations of the testatrix should be received and regarded, not as evidence of the truth of the statements therein contained, but merely as showing her state of mind and mental condition. No doubt can be entertained of the soundness of this ruling. (Estate of McKenna, 143 Cal. 580 , [ 77 Pac. 461 ].) The refusal to allow Mr. Durand to testify to the ■amount of the thefts which an examination of the firm’s books •and vouchers established was without injury. The only facts pertinent were those which had a bearing upon the condition •of the testatrix’s mind, and those were that she was charged with the theft of from two hundred to four hundred' dollars a •day for several days prior to her discharge, and was discharged because of these alleged thefts. No issue was made over the truth or falsity of the charge, and the exact amount of the .alleged peculations was unimportant. A witness, Mr. Barry, who was a visitor at the house of Mrs. Holmes after the testatrix had attempted suicide, but while she was still alive, though unconscious, was not allowed to testify to what Mrs. Holmes told him as to the cause of her sister’s condition. The evidence might well have been admitted, but its rejection could have worked no possible injury. The cause and manner of the testatrix’s death were not in dispute. Mrs. Holmes had testified to it. This witness was admitted to the sick-room where the testatrix lay dying, and it is avowed by appellant

No other matters demand specific consideration, and for the foregoing reasons the judgment appealed from is affirmed.

Melvin, J., and Lorigan, J., concurred.