Babik v. Ainley

Shaopin Caspar died testate in the county of Los Angeles and his will was probated. Appellant, Sahmin Babik, as his cousin and one of his heirs at law, instituted this contest to revoke the probate of the will. Trial was had before a jury and the issues were submitted to that jury for determination. They were all found in favor of the contestant. Subsequently the court set aside the verdict of the jury on the ground of insufficiency of the evidence to sustain it. A second trial was had before a' second jury and the evidence presented to that jury was (under stipulation) precisely the same evidence which had been considered by the former jury. Upon motion of the proponent the court directed the second jury to find all of the issues in favor of the proponent, with the exception of the issue of relationship. ‘ The jury so found. Judgment thereupon was entered affirming the probate of the will and the petition to revoke that probate was dismissed.

Before doing so, however, it is necessary to consider the law governing the conduct of a court in a case such as is here presented. The rules of evidence and the weight to be accorded to the evidence are the same in a contested will case as in any other civil case, and those rules apply when the question goes to the sufficiency of the evidence to justify its submission to the jury. (Estate of Arnold, 147 Cal. 583 , [ 82 Pac. 252 ].) Without elaboration of the authorities, and contenting ourselves with citing a few of them, the following propositions may be taken as determined beyond controversy: In this state, though the evidence pro and con upon the issues be substantial and conflicting, it is the duty of the trial judge to set aside a verdict at least once if his conviction is that that verdict is contrary to the weight of the evidence. .(Estate of Carriger, 104 Cal. 81 , [ 37 Pac. 785 ]; Estate of Motz, 136 Cal. 558 , [ 69 Pac. 294 ]; Estate of Everts, 163 Cal. 449 , [ 125 Pac. 1058 ].) We say at least once. We are not to be understood as saying that the court’s powers and duties in this regard are exhausted by its first action. Our consideration here is not complicated by that question. With the statement that the number of times that a trial judge may so exercise his powers to set aside a verdict in a given case is in many states controlled by statute, as in this state it is not, and that therefore it becomes the duty of the judge to set aside a verdict as often as his conscience is impressed with its injustice, it will suffice upon the general question to cite Clark v. Barney Dumping Co., 109 Fed. 235 ; In re Geiser, 129 Fed. 237 ; Daniels v. Leonard, 105 Ga. 841 , [ 32 S. E. 122 ]; Dethrage v. City of Rome, 125 Ga. 802 , [ 54 S. E. 654 ]; Howard Express Co. v. Wile, 64 Pa. St. 201 ; Van Doren v. Wright, 65 Minn. 80 , [ 67 N. W. 668 , 68 N. W. 22 ]; Wilkie v. Boosevelt, 3 Johns. Cas. (N. Y.) 206 , [ 2 Am. Dec. 149 ]; Van Blarcom v. Kip, 26 N. J. L. 351 ; Gibson v. Hill, 23 Tex. 77 .

Next, it is beyond controversy that the right of a court to direct a verdict is, touching the condition of the evidence,

The rule as to directed verdicts is not that a verdict may be directed whenever the evidence is such that upon motion the court would grant a new trial. The court may grant a new trial even when there is substantial evidence to sustain the verdict if it believes that the evidence preponderates against the verdict. It is under compulsion to order a new trial, and may do this of its own motion when the evidence is wholly insufficient to sustain the verdict. This is the

To sum up, then, the situation is this: If contestant did present evidence of so substantial a character as that, notwithstanding the conflict raised by proponent’s evidence, it would support a verdict in favor of contestant, it would have been error for the court to have granted a motion for a non-suit and it was error upon the part of the court to direct a verdict for proponent.

To the consideration of contestant’s evidence we thus come, bearing in mind that every intendment is to be indulged favoring any reasonable inference which can be drawn and thus might have been drawn by the jury from the direct and positive evidence itself.

Shaopin Caspar was an Armenian, born in Adrianople, Turkey, in 1861. There his early life was spent. Sahmin Babik was his cousin, two years younger. His family also resided in Adrianople, and the families of the two cousins were on intimate terms. Caspar and Babik were playmates. Caspar’s parents died when young and he received little or no education. Babik, upon the other hand, was well educated and had held positions of distinction in the Bulgarian government. When eighteen years of age Caspar came to the United States and settled in Lawrence, Massachusetts. There he lived for over twenty-five years. Before departing for the United States he made a journey to the city where his cousin Babik was then residing to bid him good-by. By industry, frugality, and business ability Caspar in Massachusetts achieved comparative affluence. When he died in Los Angeles in 1913, at the age of fifty-two years, his estate was appraised at thirty thousand dollars. For years he was a photographer in Lawrence and did a prosperous business, employing several assistants. In 1911 he moved from Lawrence, Massachusetts, to Los Angeles, and died a year and a half thereafter. He never married, nor did he seem to have sought the society of women. He was a Mason and an Odd Fellow,

In 1904 Babik came to America. He wrote to Caspar from New York, advising him that he was without a position and asked Caspar’s advice. Caspar expressed great delight upon receiving this letter. He had seen no blood relative for twenty-two years or more. He wrote a cordial reply to his dear cousin and Babik then went to Lawrence, where the meeting between the cousins was most cordial and affectionate. Babik was married and Caspar gave him á position in his studio and provided him and his' wife with a home. He appeared proud of his cousin, of his education, and of the high positions he had occupied, including a secretaryship to the king of Bulgaria, and frequently spoke of these matters to his friends. He made Babik acquainted with his brethren of the Masonic order, introducing him as his cousin and securing his election to membership. In many ways he expressed more than mere affection and admiration for his cousin, declaring his intention to provide for him in his life and at his death as being one of his nearest relatives and the one to whom he was fondly devoted.

In 1905 Emily Ainley, proponent of the will and the sole beneficiary thereunder, arrived in Lawrence with her husband, Sam Ainley. Mrs. Ainley was an immoral and designing woman. Sam Ainley was a complacent husband, if not worse. The two conspired to get Caspar in their clutches and subject him to their domination. This was to be accomplished by the seduction of Caspar, and to the effectuation of this end, with the connivance and procurement of her husband, Mrs. Ainley set herself. She was the janitress in charge of the hallways of the building in which Caspar’s studio was situated. She was much younger than Caspar. She was frequently and unnecessarily in his room. She accomplished her purpose and became the mistress of the well-to-do bachelor. The relationship Caspar admitted, with epithets of contempt for the complacent husband, but at that time he regarded the woman as nothing more than his mistress. Mrs. Ainley did not conceal the fact that her designs were meretricious and mercenary. She said that Caspar had a lot of money and she might as well have it as anybody else; that she proposed to get it even if she had to work hard to do it. The relationship between the two seemed to have been

In 1912 Caspar seems to have become nervous, excitable, disheartened, melancholy, absent-minded, preoccupied, and negligent in attire, while before he had been neat. Notwithstanding his years, if it be true that “a man is as old as his arteries,” he was rapidly approaching senile decay, for though he died at the age of fifty-two, the cause of his death was brain lesion following arterial sclerosis.

During this time his cousin Babik wrote to him, asking him to lend money to aid him in a business venture. He repudiated Babik in terms of hostility and denied that Babik was related to him. In the latter part of January he was taken to a hospital. He had complained of constipation. While in the hospital the will in question was executed. In the hospital he was stricken with a cerebral hemorrhage. While suffering from this hemorrhage, but after the execution of the will, he was taken back to the Ainley home, and there, five days later, he died.

The hospital charts during the days he was there showed a marked failure of physical powers and control. He could not retain his urine; he vomited; he was kept on a low diet— eggs and milk—which he could not retain. Mrs. Ainley was constantly at the hospital and in attendance on him. Frequently- before her he expressed to the attending doctor, who had been called in by Mrs. Ainley and who was not the physician who had previously treated Caspar, his desire to make his will. This physician summoned D. H. Laubersheimer, an attorney at law, for that purpose, and in the hospital and under these circumstances, and in the presence of Mrs. Ainley, Mr. Ainley, Mrs. Ainley’s mother, Dr. Cook, and a friend of the Ainleys, George Shaw, and Mr. Laubersheimer, the will was drawn by Caspar, devising and bequeathing all of his estate “to my dear friend Emily Ainley to be hers forever,” and appointing her sole executrix, to serve without bonds. The testimony of these witnesses, all favorable to the proponent, is that they were all present at Caspar’s request. The attorney, upon asking the sick man if he desired to make

An appellate tribunal sitting to review asserted errors at law always regrets the necessity which here confronts us of presenting and analyzing matters of evidence. It regrets the necessity because the analysis of the evidence may be, and frequently is, misunderstood to be an expression of the court’s views as to the weight of the evidence. We are here compelled to set forth contestant’s evidence for the single and sole purpose of determining whether it has legal weight and substantiability in and of itself, and without regard to the conflicting evidence, to support the issues tendered by contestant, and what has been said and what may be said is to be construed, therefore, solely from this point of view, and not at all as expressing the court’s opinion touching the question whether with contestant or -with respondent lies the preponderance upon a review of all the evidence in the case. We are not here concerned with the conflicting evidence introduced by proponent. We repeat, we are concerned simply with the determination of the question as to whether the direct evidence introduced by contestant, with the reasonable inferences permissible to a jury to draw therefrom, would have sustained the verdict of the jury in favor of the contestant. If it does, the court’s action in directing a verdict against contestant is grave error.

Such being the situation, the court erred in directing its jury. It was the duty of the court under the circumstances to have submitted the cause a second time for the jury’s determination, and then a second time, should a motion for a new trial have been made, to act in accordance with the dictates of the law.

We are not here confronted, as has been said, with the conflict between the constitutional right of a litigant to the determination of a jury and the duty of a court to set aside

The judgment appealed from is therefore reversed.

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

Hearing in Bank denied.