Ashby v. Bryson

At the close of appellant’s case respondents moved for a nonsuit, which motion was granted. The appeal is fronl the judgment entered thereon.

Evaline Bryson died testate on or about June 17, 1920, in the county of Los Angeles, a resident of said county, this state, leaving personal and real property of the value of about $91,000. Decedent’s will was executed November 1, 1909.. Two codicils, the first of which was dated February 22, 1915, and the second April 2, 1915, were executed. All of the children living, and the representatives of deceased children of the marriage of John Bryson, Sr., and Evaline Bryson, were made beneficiaries under the provisions of said will. Evaline Bryson survived her husband by several years.

Isaac H. Bryson and John Henry Bryson, son and nephew respectively of decedent, were named in said will executors without bonds. They filed a petition praying that said will and codicils be admitted to probate and that letters testamentary be issued to them. Objections and a contest to the probate thereof were filed by John Bryson Ashby, a grandson, July 20, 1920, alleging that the will and codicils are the products of undue influence exercised and brought to bear upon the mind of decedent by her son, Isaac H. Bryson. The facts specifically alleged by contestant are that decedent was unfamiliar with business affairs and for a period of twenty years prior to her death by reason of her advanced years she had been and continued until her death to be weak in body and mind, unable to transact business or care for her property, and that she was in constant need of personal care and attention; that during all of said period she resided with and was cared for by her son, Isaac H. Bryson, at decedent’s home, and was entirely dependent upon him for care and attention; that by reason of her advanced years, lack of business experience, and also by reason of her dependency upon her said son for care and attention said son acquired and had at the time of the formal execution of said will and codicils a great and controlling influence over her mind and will and was able thereby to, and did direct and dictate to her in matters relative to her property; that said Isaac H. Bryson possessed, and for many years prior to the execution of said will and codicils possessed, a most violent temper and at many times prior to, and about the time of the execution of said will and codicils, displayed in the presence of testratrix fits of anger when she did anything that displeased him, and he raved at and scolded decedent to the extent that she was in fear and dread of his wrath; that while she was in the condition of body and mind described and under the domination and control of her said son, he, with the intent and for the purpose of procuring the said E'valine Bryson to execute said purported will

As a second ground of contest it is alleged that many years prior to the execution of the will or codicils said Isaac H. Bryson had complete control of all the business affairs of decedent and controlled her property and money as his

All of the material allegations laid as a basis for the charges of undue influence, or which may be claimed to show mental weakness, are specifically denied. It is admitted by petitioners that since about the year 1907, in obedience to the earnest request and wish of Evaline Bryson, her said son, Isaac H. Bryson, took up his residence with her and thereafter resided continuously at her home in the city of Los Angeles until her death and gave her all proper care and attention of which she was in need and which he as a dutiful son should have given, but it is denied that she at any time entirely depended upon him solely because of the care and attention he gave her as a son; it is also ad

Testatrix by her will gave to her daughter, Margaret Jane Krause, mother of contestant, the piano then at the home of ■the latter and all jewelry she should own at the time of her death; to Nettie E. Bryson, widow of her deceased son, William, she gave $2,000. In the event of her death this bequest was to be distributed to the other legatees in equal shares. To her sons, Isaac H., John M., James F., and to her daughter, Margaret Jane Krause, and to Nettie E. Bryson, widow of her deceased son, Edward Bryson, and to Alice Bryson, widow of her deceased son, Albert F. Bryson, she gave an undivided one-sixth interest in the piano and all the furniture which she should own at the time of her death. Upon the death of Isaac IT. Bryson, his wife, Susan E. Bryson, was to succeed to his one-sixth interest in said furniture. Any" disagreements between said heirs as to the selection of the particular articles or pieces of furniture was to be overcome by the sale of such particular piece or pieces in disagreement and the proceeds were to be divided proportionately among said heirs. All existing notes, accounts, and debts, with legal interest due thereon, owing to her by any of her beneficiaries, whether barred or not by the statute of limitations, were to be treated as advancements made to said beneficiaries respectively and deducted from his or her share of decedent’s estate. The executors were instructed not to sue for the collection of said indebtedness but to inventory the same and cause the proper deductions

Clause “Seventh” of said will provides that in order to guard against waste and willful or negligent expense to her estate caused by litigation, and to the end that the beneficiaries named in her will who are satisfied to abide by its provisions may receive their respective allotted shares undiminished by the expense caused by dissatisfied heirs or legatees, each devise and bequest is made subject to the provisions of said clause “Seventh,” which in effect provides that should any of said heirs, legatees, or devisees or any of their heirs or descendants entitled to succeed to his or her share under said will, individually or jointly, bring, instigate, or maintain any contest or court proceedings for the revocation of or against the probate of said will or who shall refuse to abide by all or any of its provisions, such heir, devisee, or legatee shall bear the costs, expenses, charges, and attorneys’ fees which said estate may incur in the defense of said contest or opposition should the same prove unsuccessful, and the executors are authorized and directed to deduct said costs of defense, including attorneys’ fees, from the distributive share or shares of such heir or heirs as should contest.

Said Isaac IT. Bryson and John Henry Bryson, named executors without bonds, are authorized to sell, mortgage, or lease any or all of decedent’s property, real, personal, or mixed, without being first required to obtain an order of court so to do or to file any petition therefor, and are empowered to make sales, mortgages, or leases in such man

On February 22, 1915, decedent executed a codicil to said will whereby she revoked the legacy giving to Margaret Jane Krause all of the jewelry which she might own at the time of her death. She explained that this change was made necessary for the reason that since the execution of said will she had made presents of diamonds and valuable jewelry to certain of her children and only trinkets and inconsequential pieces of jewelry such as she might own at the time of her death were to be distributed to said heirs on the same terms as were prescribed for the distribution of her furniture. It was also provided that the following gifts should not be treated as advancements: The house and lot situate at Tropico, county of Los Angeles, deeded to John F. Bryson; the house and lot being No. 158, South Oxford Avenue, Los Angeles City, granted to John M. Bryson; certain land situate in Kern County granted to Isaac H. Bryson and wife. It was also expressly directed that the bequests of $25,000 theretofore given to each of her children then living (including the mother of contestant) and to the wives of deceased sons should not be deemed advancements. Clause “Seventh” of said will was modified so as to provide that should any heir, devisee, or legatee under said will, maintain, instigate, and contest or bring any action for the revocation thereof, individually or jointly, such heir or heirs should not share in her estate and the share of such contestant shall be distributed ratably to the residuary devisees and legatees who had taken no part in instigating or conducting such contest or litigation. It is provided, eas industria, that in the event that the children of Margaret Jane Krause and Alice Bryson shall bring any action or contest or claim against her estate the provisions made by her will for the said Margaret Jane Krause and Alice Bryson shall fail and the share of each shall be ratably apportioned among such remaining residuary legatees and devisees as shall not take part in or instigate such contest or opposition. The legacy of $2,000 made to Nettie E. Bryson was withdrawn by the codicil for the reason that substantial advancements had been made to her since the execution of said will.

All of the devises and bequests were made subject to the forfeiture clause. On this subject the testatrix made the

The only change or modification made to the will by the second codicil consisted in the transfer of the share given to John M. Bryson to his son, Frank Bryson. The cause for this change was the death of John M. Bryson, occurring since the execution of the codicil dated February 22, 1915.

The pleadings are set out at considerable length for the purpose of showing the character of the acts, circumstances, relations, and transactions from which it is claimed the web of undue influence was woven. The allegations of the petition are somewhat vague, and in some instances the allegations of fact relied upon to establish a ground of contest on a particular theory conflict with and are repugnant to the statement of facts essential to and elsewhere pleaded for the purpose of establishing a different theory. The provisions of the will are also set out at large, as they furnish the best answer that may be made to contestant’s charges of undue influence. There is nothing about the will or its codicils that suggests the indulgence of unreasonable preferences made in favor of one heir over another or an unfair or inequitable distribution of testatrix’s estate among her children then living and the representatives of those deceased. If the proponent, Isaac H. Bryson, attempted to unduly influence testatrix in the disposal of her property his efforts for some reason were rendered futile and his plans signally miscarried. The contestant was but a grand

The directors of the Estate Company consisted of the members of testatrix’s family—sons and daughters and in some instances wives of deceased sons, and grandchildren. They met in large numbers at testatrix’s home to transact the business of the company. These meetings furnished the occasion not only for the discussion of business matters, but family affairs as well. On numerous occasions discord prevailed. Harsh accusations and bitter denunciations occasioned by jealousies, suspicions, and fears that Isaac H. Bryson or some one of the heirs had ingratiated himself or herself into the favor of the mother and was receiving more than an equal share of the estate, were not infrequently heard. Much anxiety was manifested by certain of the heirs as to whether or not testatrix had made a will and, if so,

A few quotations from and references to the testimony will serve to illustrate the language used by Isaac H. Bryson to his mother and to other members of the family in her presence, upon which contestant relies very largely to make out a case of undue influence.

Mrs. Lillian Burns, a witness personally unfriendly to respondent Bryson, who had resided at testatrix’s house for a short time either in 1913 or 1916 (she was uncertain as to time), testified that she had heard respondent say to his mother concerning the visits made by other members of the family to the Bryson home, “What do you want them for— what are they coming here for? They want your money; they are always after your money,” and the mother would reply, “Not necessarily.” Isaac would say: “He didn’t want them to come; he disliked them and they were not fit to associate with.” He spoke of Ashby as a dishonest man; “he couldn’t do anything that was right; he never did do anything that was right, honest and upright; he didn’t wish him to come to the house.” He also stated that he would be glad when the Bryson property should be sold for taxes; that it would be sold for taxes and that the young people would be through with it. He further said that the sooner “we get through with the property the sooner they will have less to fight about.” Witness heard testatrix say that she

Louise G-erstmann did the housework at the Bryson home from February, 1907, to February, 1918. During the first two or three years of her connection with the family she heard frequent conversations with Isaac and his mother. “I heard them talk about the will because you know they never had any secrets; they just told everything; everything was open; everybody knew what I know. They told me that Mrs. Krause was going to get the diamonds.” The witness believed that it was in 1909 she heard them talking about the will. Mrs. Isaac Bryson told her that Mother Bryson had made a will. Isaac never talked with the witness about his business. She could not state what Isaac had said about the execution of the will. The making of the will was discussed at the table in the presence of company. She heard Mrs. Krause say that Mother Bryson had made a will. Isaac said that Mrs. Krause was to get the diamonds. “That is all [diamonds] I remember about that will. I don’t know if there was any thing else in it.” Isaac said the rest of the family would “go through with everything; they would spend everything.” The witness stated that “there was always trouble among the relatives; somebody always done something or said something.” There was always turmoil. She heard Isaac say that if it were not for him the mother would not have anything, as the others did not save and he saw to it that she had plenty of money. "When the question was raised by Isaac about the selling of the Bryson Block there was a big “fuss.” She heard him say that Mrs. Krause had received too much money already; that they had been supporting her right along. He also made the statement that contestant drank and that he was “just like his father.” The witness said there were six or seven at the table at every meal. She heard Isaac denounce Mrs. Webber, Mrs. Krause’s daughter. He was angry at other members of the family, but never at his mother. He was always kind to her. He did not want the other members of the family to visit so often. Mrs. Krause was given money by her mother; if she did not come to the house it was sent to her. Witness thought she

Mrs. Alice Bryson Ashby, the wife of contestant, testified that she heard testatrix state to Mrs. Krause that she would do anything in the world for her but she could not give her money because Isaac would not let her have it; that he took care of her business. Mrs. Krause had commenced a suit against her father, John Bryson, Sr., which made Isaac very angry and he told contestant that if he did not have his mother withdraw the suit he did not want him or his wife to ever again speak to him; that “if he didn’t have his mother withdraw the suit she wouldn’t get a cent of father’s or mother’s money; we will have them cut out of the will without a dollar.” This occurred in 1895.

Ella H. Fisher, a daughter of Jane Bryson, who resided in Colorado, visited testatrix in 1902. She had not been in the house more than two weeks before she had a “fuss” with Isaac. She took exception to the location of the home testatrix had purchased for witness’ mother and father. This ended in angry words with Isaac who made reference' to her in uncomplimentary terms.

Hattie Bryson, wife of James S. Bryson, testified that in 1910 testatrix said that she was going to give each of her children $5,000 with which to purchase a home. John had already received that amount and witness received $3,500 to pay on a home.

In 1913, Lillian Webber, contestant’s sister, visited the Bryson home in company with her mother, Mrs. Krause, and asked testatrix if she intended to give her mother a home. Testatrix said: “You will have to ask Uncle Isaac.” Isaac became angry “and told us both to get up and get out; he wasn’t going to be annoyed by us.” Testatrix said she was poor and had no money. Mrs. Webber replied by stating that testatrix was receiving $1,500 or $1,600 a month from

Vernon H. Peck, a real estate agent, gave testimony to the effect that in the year 1915, while calling in a social way at the residence of testatrix she stated that she wanted to get a couple or three homes—one for Maggie, one for John and Lizzie, and she might want to get a third one. On his fourth call in respect to the matter she told him that she was disappointed, that Isaac would not let her buy anything because he said there was not any money. The purchase price of one of the houses submitted was $8,400. The witness had formerly been associated with contestant in a business way.

Joseph Sentman Bryson, a son of Samuel Albert Bryson, was asked by his grandmother to become a director of the Bryson Estate Company. He said that if he became a director he wanted it understood that he would not take orders from anyone. Isaac asked him why he would refuse to take orders from him. He said that he thought he was biased toward certain members of the family, and if elected a director, he would do what was just and right. Isaac said that taking orders from him was not worse than taking money from the company, as his father had done when he was agent for the Bryson building. This reference to an unpleasant subject caused testatrix to begin to cry and she said: “Ves, your father took money while he was agent of the Bryson building and Isaac can prove it.” Witness was not elected a director, but Henry Bryson was elected to fill the vacancy. He had also heard Isaac speak many times of the $1,700 that John Ashby owed testatrix and had heard him use bad names when speaking about him. The witness, however, was elected a director of the Bryson Estate Company in 1909 and continued thereafter to serve with Isaac as such. He said that Isaac put all the motions that were voted on

John F. Bryson, son of testatrix, repeated very largely the testimony already given. He spoke of Isaac’s dislike of Mrs. Krause and had heard him say that she was “no good” and disparaged her character. He also spoke very disapprovingly of John Ashby.

Several instances were related by members of the Bryson family showing what is claimed to have been outbursts of anger on the part of Isaac. No doubt those instances were related to show that they must have produced a coercive or terrorizing influence upon the mother’s mind. The few exhibitions of temper described occurred at meetings of the family and were provoked in the discussion of business affairs. They also arose out of the resistance offered by Isaac to the efforts of certain heirs to obtain money or property from testatrix; or criticisms of his management of the estate, or were the effect of insinuations made affecting his honesty and motives. In no sense was the display of temper calculated to influence nor could it have had the effect of unduly influencing the mother to disinherit a single member of her family. She was by no means in fear of her son Isaac. Every witness who spoke on the subject admitted that he was always kind to her and never spoke in harsh

Much of the evidence introduced into the case would have been relevant in an action for an accounting—a theory on which a pleading was at one time framed—but was wholly immaterial to the issue of undue influence. A good part of it was directed to conversations had a long time after the execution of the will and codicils.

The suggestion that testatrix did not know that she owned property or what its value was or the kind and character of such property at any time during her life is an absurd contention in the face of the testimony and the statements of those who were importuning her for favors. It is true that she told real estate agents, who doubtless were using their best efforts to persuade her to purchase rather expensive homes for certain children, that Isaac had said there was no money, or that she told them she was poor. It is a fair and natural inference to be drawn from the history of the family transactions that testatrix made Isaac her business agent and attorney for the purpose of protecting herself from both the stress of importuning heirs and from the annoyances of business life. Testatrix was eighty-two years past at the time Isaac became her attorney and agent; she was eighty-four years of age when she executed her will; ninety when she executed the codicils, and ninety-five at the time of her death. Witnesses who had known her long and well and had seen her often in her later life wondered at her strength of mind. Henry T. Gage, a former Governor of this state, said of her: “She was a woman of remarkably clear mind, a bright woman; remarkably bright for a woman of her years or not of her years.” Witnesses to the execution of the will and codicils testified to the same effect. Louise Gerstmann, the lady in charge of her household affairs from 1907 to 1920, testified that “she was the dearest old lady that ever was, and very patient. She seemed to be a sensible old lady; the dearest lady I ever knew.” No attempt was made to show that her mind had weakened or become impaired under the weight of years. Physically she grew more or less feeble, but her mental powers were not questioned by a single witness. She took occasional distant trips, rode a great deal in her automobile, discussed all her business affairs with her son Isaac, as testified to by Louise

The transaction in which testatrix deeded 400 acres of Kern County land, acquired in 1914 by an exchange of properties, to Isaac, is offered as a circumstance pointing to undue influence. The value of the land is not shown and we conclude that it was not of great value. The uncontradicted evidence is that Isaac did not want the land, told his mother that he did not want it, but she said she wanted to give him a home, as she had given homes to the other children. He afterward deeded the largest part of this land to John Henry Bryson, a nephew, for a home. This was done before testatrix’s death and it met with her approval.

The claims of contestant are thus answered: If Isaac attempted to keep other members of the family from the home of testatrix, he failed, for they came in large numbers; if it was his will that the mother should refuse to give them money or property while living, he suffered disappointment, because she gave to each one of her children either personal or valuable real property; if he attempted to influence her unduly in her testamentary disposition, he again failed. The will itself is indisputable evidence of a rational disposition of her estate. That Isaac’s indebtedness, if any, was forgiven, was a matter for the determination of testatrix and no one else. Under the evidence it was not an unnatural thing for her to have done.

Only two assignments of error are noticed in the briefs of appellant. The first is on the ruling of the court sustaining an objection to a question asked by appellant as appears below:

"Q. Did you have a conversation with Evaline Bryson in May, 1913, relative to her property? A. I did.

“Q. State to the court what was said.”

An objection was made and sustained to the question. It will be noted that the time fixed was eight years after the execution of the will and two years after the execution of the codicils. The reason assigned for the materiality of the question was that “if decedent had fully known about her property, the condition and amount thereof, she might have executed another codicil to her will.” We see no merit in

The second assignment arises upon an objection raised to a question asked Joseph Smith, a subscribing witness to the will, under the following circumstances:

“Q. At that time [when she executed the will] was Mrs. Bryson acting of her own free will, not acting under duress, or undue influence, or fraud?

“Mr. Himrod: Just a moment. We object to that as calling for a conclusion of the witness.

“The Court: You may answer so far as you know.

“A. So far as I know she was acting freely.

“The Court: And not under undiie influence?

“A. Not under undue influence.

“Mr. Bull: Q. Or fraud? A. Or fraud of anyone.”

Counsel, in discussing this ruling in his brief, suggests that as the question of insanity was not involved, the opinion of a subscribing witness was not particularly material so far as the issues of the contest were concerned. If this is true, no harm was done. The witness, however, was closely examined on all that was done and said by testatrix at the time the will was executed, and no possible harm resulted from the ruling complained of.

[1] Adopting, as we must, the rules of construction that apply to cases of nonsuit, by indulging every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence, and giving to contestant the benefit of every piece of evidence which tends to sustain his averments, as fully stated in Berger v. Lane, 190 Cal. 443 [ 213 Pac. 45 ], and cases cited, it is clear that he has completely failed to make out a prima facie ease. [2] The rule of law is that fraud must be proved and cannot be presumed, and its application to the facts of this case is sufficient alone

The mind of testatrix was not held under subjugation by anyone. There cannot be the slightest doubt but that her Avill reflects the free and voluntary Avish of a just mind.

The judgment is affirmed.

Lennon, J., Waste, J., Kerrigan, J., and Lawlor, J., concurred.