Fisher v. Security Trust & Savings Bank

This is an appeal from an order admitting the will of decedent to probate. The Security Trust and Savings Bank of the city of Los Angeles filed a petition in the superior court of the county of Los Angeles for the probate of the holographic will of Harry C. Fisher, deceased, wherein it was named as executor. Said will was produced subsequent to the issuance of letters of administration to Hart C. Fisher, father of the decedent. The said father opposed the admission to probate of said will, which was dated August 12, 1919, alleging that said

Contestant asserts that the trial court committed reversible error in refusing to permit him to introduce in evidence the record in a proceeding in the superior court of the county of Los Angeles taken under the provisions of section 2185c of the Political Code, wherein decedent was committed to a state hospital for inebriety for a period of two years commencing June 21, 1917. It is contestant’s contention that the order of commitment was a judicial determination that decedent was of unsound mind on the date of the order; that the presumption is that insanity judicially established continues until restoration to capacity, and that the evidence introduced by petitioner was insufficient to rebut the presumption of incompetency. It is further contended that the court erred in refusing to permit the witnesses offered by contestant to testify as to decedent’s soundness of mind.

[1] The presumption of law is that a person is sane, and the burden is always upon the contestant to show affirmatively by a preponderance of evidence that the testator was of unsound mind at the very time of the execution of the will. (Estate of Perkins, 195 Cal. 699 [ 235 Pac. 45 ], and eases therein cited; 26 Cal. Jur. 635.) Evidence of the testator’s mental condition both before and after the execution of the instrument is relevant and admissible for the light that it sheds upon the soundness of his mind at the time of the execution of the will. (Estate of Perkins, supra;

[3] Contestant offered in evidence the records in a proceeding in the superior court of the county of Los Angeles in which decedent was committed to a state hospital for a period of two years commencing June 21, 1917, in pursuance of the provisions of section 2185c of the Political Code. The trial court ruled that such record was inadmissible, on the theory that it related to decedent’s condition at a time too remote from the date of the execution of the will, in 1919, and on the further ground that a commitment for inebriety is not an adjudication of mental incompetency. Section 2185c of the Political Code provides for the arrest and commitment to a state hospital by the judge of the superior court, after an examination and hearing in open court, of persons who are “so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self-control” or who are “subject to dipsomania or inebriety.” Where a claim is made that an excessive addiction to alcoholic liquors for a period of years preceding the execution of the will has destroyed a testator’s mental powers, we are of the opinion that the record of a commitment under section 2185c is admissible in proof of the

[6] If it be conceded that the record of the commitment proceedings was admissible in the instant case, its exclusion did not prejudice contestant’s case and does not constitute reversible error, for giving the fullest effect possible to said record and to the evidence introduced by contestant as to testator ’s indulgence in the excessive use of alcoholic stimulants and to the evidence which, it is charged, was erroneously excluded, the proof would be wholly insufficient as a matter of law to sustain a finding of mental incompetency. Practically all of the facts as to the effect of the inordinate use of alcoholic liquors upon decedent were shown in evidence.

The witness Webb, who since 1916 has been chief of police of the city of Santa Monica, where decedent resided for a time, testified that in the course of the performance of his duties he had come in contact with decedent at various times between 1916 and the date of his death, when decedent was arrested for drunkenness; that he had been arrested on an average of “probably two or three times a year,” and that he had talked to decedent on the streets on “an average of once every two or three months,” on which occasions he gave evidence of having been drinking, but was not sufficiently intoxicated to be arrested; that to his knowledge he had never seen him when he was sober. The witness also stated

This evidence is wholly insufficient to show that the use of intoxicants by decedent had rendered him testamentarily incompetent. The witness testified that he saw decedent once every two or three months and on the occasions when he arrested him, which was two or three times a year, and that he never saw him sober except when he was released from jail. [7] Proof that decedent was “incompetent” or “insane” when so intoxicated that it was necessary to arrest him or upon occasions when, in the words of the witness, he “only needed another drink to put him down and out,” is entirely insufficient to show that decedent never enjoyed lucid intervals during which he was competent to execute a will. The witness himself testified that the decedent was not released from jail until sober and that he was not insane when sober.

The court also refused to permit the witness Davis, a police officer of the city of Venice, to state whether decedent was competent and of sound mind in 1919, on the ground that it had not been shown that said Davis was qualified as an intimate acquaintance. Davis stated that in the course of his duties he saw decedent “off and on almost every evening” during May, 1919; that he made him go home, ,put him on the car and talked to him “just long enough to get him across the line into Santa Monica”; that he arrested him on one occasion, and that he saw him less frequently in 1920.

Proponent’s objections to the testimony of C. K. Pierce, a patrolman connected with the Santa Monica police department, were sustained by the court after said witness stated that he had never met decedent until August, 1921, two years after the will was executed. Although, as pointed out above, evidence of a testator’s mental condition subsequent to the execution of the will is generally admissible, the court, in sustaining the objection to Pierce’s testimony, no doubt acted under the apprehension that said witness’ acquaintance with decedent was similar in nature to that of officers Webb and Davis and that any testimony which he might offer would relate to decedent’s state of mind when his condition and conduct were such as to require the attention of officers of the law. Contestant made no offer to prove any other or different matters by said witness.

[8] While the court is vested with wide discretion in determining whether a witness has brought himself within the intimate acquaintance rule (see. 1870, subd. 10, Code Civ. Proc.), we are of the opinion that some of the witnesses, particularly witness Davis, who were not permitted to express an opinion, were qualified to do so as to the mental sanity of decedent. The facts upon which their opinions must have been predicated were, however, fully stated to the court, and it is quite evident that an expression of opinion by them would not have been of sufficient added weight to have established testamentary incapacity at the very time the will was executed. If the case were a close one upon the evidence a more serious question would be presented.

Neither contestant, who was the testator’s father, nor the testator’s brother testified as to his sanity. Testator’s aunt, a beneficiary under the will, with whom he resided a large portion of the time after the death of his mother and to the time of his own death, testified that testator was sane and competent and that he had not been intoxicated in her presence at any time during the summer of 1919. Herbert M. Haskell, a disinterested witness and an attorney who practiced law in this state for a number of years and later became a banker, testified that the testator consulted him soon after his mother’s death as to the requirements for a valid will and as to whether it would be legal if drawn by himself; that he was competent at that time to make a will; that he saw him from six or seven to a dozen times during the ensuing two or threé months and discussed with him

[9] The contestant was not prejudiced by the error of the court in refusing to admit the record of commitment in evidence nor by the ruling excluding the opinions of the witnesses above referred to. Every fact which from necessity must have formed the basis of the commitment and likewise the basis of the “reasons” of said witnesses had they been permitted to express an opinion, were fully before the court. The former habits of testator were not shown to have affected or influenced his testamentary act. [10] “No judgment shall be set aside, or new trial granted in any case on the ground of . . . the improper admission or rejection of evidence . . . unless after an examination of the entire cause, including the evidence, the court shall be of the opinion that* the error complained of has resulted in a miscarriage of justice.” (Art. VI, sec. 4½, Const.) If the opinions of said witnesses were based upon the facts as detailed by them, the expression of their opinions thereon doubtless would not and should not have changed the decision as to the testamentary capacity of testator. t

Judgment affirmed.

Shenk, J., Richards, J., Preston, J., Langdon, J., Curtis, J., and Waste, C. J., concurred.