Kelly v. McCarthy

This appeal is from a judgment invalidating certain separate bank deposits originally made by John J. Kelly in his name and which he afterwards transferred or changed into joint tenancy accounts in the name of himself and Alice S. McCarthy, payable to either of them or to the survivor, approximately two years before his demise. The question presented is whether the evidence, directly or inferentially, is sufficient to sustain the findings of the trial court to the effect that the appellant procured said transfers to be made by the exercise of undue influence and by the employment of fraudulent means practiced upon John J. Kelly, deceased, as found, or was guilty of procuring said assignments to be made by the employment of either of said means or methods.

John J. Kelly was a resident of the city and county of San Francisco on the day of his death, November 22, 1932. He was a widower, and left no child or children or the issue of

The suit was commenced by Charles G-. Kelly, a brother of decedent, after request made by him of the special administrator, Bank of America National Trust and Savings Association, to bring suit, which request the special administrator refused to grant.

The decedent had been for some twenty-six years or more an employee, and latterly an inspector, in the service of the Market Street Railway Company. Át the time of his death he was retired from active service and was receiving compensation as provided by the system of retirement. He and his wife were unquestionably persons of frugal habits, and decedent had been accustomed for many years to make deposits of his savings with the Hibernia Savings and Loan Society and the Bank of America National Trust and Savings Association. His wife predeceased him by nine or ten years.

In 1910 he opened a savings account with The Hibernia Savings and Loan Society, and in 1917 he opened a similar account with the Bank of America National Trust and Sav

On February 19, 1931, the day said joint accounts were opened, there was on deposit in Mr. Kelly’s name in the savings department of the Bank of America National Trust and Savings Association, $802.76. At the time of his death, November 22, 1932, it was reduced to $393.52. All withdrawals were made by him. On said February 19, 1931, John J. Kelly had on deposit with said The Hibernia Savings and Loan Society the sum of $2,205.49. On the day of his death, November 22, 1932, the joint deposit account of decedent and Mrs. McCarthy with said Savings and Loan Savings had increased from $2,205.49 to the sum of $3,671.15, totaling $4,064.67 on deposit with both banks. This amount does not include any interest, which may have then been earned or which may have since been earned by said deposits.

The main charge upon which respondent relies to invalidate the transfers of said deposits or accounts into joint tenancy accounts is that decedent was of the belief and opinion that the relatives here claiming his property as heirs at law were at “enmity with him”. It is not alleged that Mrs. McCarthy put such thoughts into his mind, but on the contrary, it is alleged that they originated with him, and she, well knowing that the beliefs and opinions of decedent in regard to his relatives were false, took advantage of his weakness of mind and the control and domination which she held over him, and caused him to be confirmed and fixed in said

Mrs. McCarthy answered the complaint and denied all allegations which imputed or tended to impute fraud or undue influence on her part, and affirmatively alleged that the transfers of said accounts were the free and voluntary acts of the decedent, and that he was not at any time affected with any disability whatsoever.

The Bank of America National Trust and Savings Association in its answer denied that the $393.52 held by it in joint tenancy was a part of the estate of John J. Kelly, deceased. As a separate defense said bank alleged that on February 19, 1931, John J. Kelly had on deposit with it the sum of $802.76, and on said day said account was closed and said sum withdrawn by said John J. Kelly and on the same day he and Mrs. McCarthy opened a new bank account in the name of “John J. Kelly and/or Mrs. A. S. McCarthy as joint tenants,” said account being payable to either of them, and that various withdrawals were made from said account, leaving the sum of $393.52 remaining in the joint names of John J. Kelly and/or Mrs. A. S. McCarthy.

The Hibernia Savings and Loan Society answered that on November 22, 1932, it had on deposit in an account standing in the name of ‘1 John J. Kelly or Alice S. McCarthy, payable to either or to the survivor of them” the sum of $3,671.15. All other allegations of the complaint going to the merits of the action are denied for want of information or belief.

Both banks disclaimed any interest in said deposits and asked leave to pay the amounts held by them into court for the use of the person or persons whom the court should determine were entitled to receive the same.

John J. Kelly was a native of Ireland and came to America as a very young man. He was vigorous mentally and physically and was devoted to the religion of his childhood. He was dependable and for some twenty-six or more years was an employee of the Market Street Railway and earned his right to retire upon compensation. He was unquestionably loyal to tried and deserving friends and sympathetic with and considerate of the unfortunate. He and Jeremiah Me

We have examined the evidence of the sixteen witnesses called by the respective parties and, taking the record by its four corners, we are of the view that it does not present sufficient reasons for denying to the decedent the right of disposing of his own at his will. Pertinent to the facts of the ease is the rule expressed in In re Kaufman’s Estate, 117 Cal. 288 [ 49 Pac. 192 , 59 Am. St. Rep. 179 ] : “The right of absolute dominion over his property is sacred and inviolable and whatever may be his [testator’s] motives or however great or unfounded his dislikes or his resentments against those who might be thought worthy of his bounty, his will in the disposition of his property is paramount. [Citing authorities.] ‘The right of a testator to dispose of his estate depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he will with his own, and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust. ’ ”

A will may not be set aside upon suspicion or because it does not conform to the ideas of others as to what was just or proper. (In re McDevitt’s Estate, 95 Cal. 17 [ 30 Pac. 101 ] ; Estate of Smith, 200 Cal. 152 [ 252 Pac. 325 ] ; Estate of Shay, 196 Cal. 355 [ 237 Pac. 1079 ]; Lobb v. Brown, 208 Cal. 476 [ 281 Pac. 1010 ].)

We will not attempt a meticulous review of all the evidence, or attempt to reconcile conflicts or contradictions as to

Mrs. McCarthy first met Mr. Kelly in 1925, when he was brought to their home, No. 2207 Fulton Street, San Francisco, by her husband, Jeremiah McCarthy, after they had attended mass. Jeremiah McCarthy and John J. Kelly had been friends for a period of forty years. Mr. Kelly was then living with his sister, his wife being dead. For a short time Mr. Kelly attended church in another neighborhood, but he soon returned to the church at which the McCarthys worshipped, and he often went to the McCarthy home following church services. He left the home occupied by his sister and himself in 1925 because they were not on agreeable terms, and went to San Mateo and from there to Los Angeles. Upon his return from the latter city to San Francisco he went to a hotel Shortly thereafter he visited the home of the McCarthys and, according to the testimony of Mrs. McCarthy, said to Mr. McCarthy that his sister had been insulting to him and he was without a home; that he could not stand her. Jeremiah McCarthy said: “John, while we have a roof over our heads you will always have a home. Come with Alice and me. Take any room in the house; it is yours. Make yourself comfortable. We will do all we can for you. ’ ’ Mr. Kelly asked how much his keep would cost him. He said that he had been paying his sister $60 per month. Jeremiah McCarthy said, “We don’t want anything from you.” Mr.

Mrs. McCarthy testified that Mr. Kelly asked her to marry him and said to her if she would marry him they would live in one of his new houses at San Mateo and he would give her care that she had never before had. She replied to his proposal by telling him that she could not do him the injustice, of having him assume the responsibility of the care and support of the old invalid lady she was supporting; that she could not tell how long she would last; that she loved her. He said she was a grand old lady and he had never seen her equal. Mrs. McCarthy told him she would marry him after the old lady went to her rest. She testified that she intended to marry him when the old lady passed, and he said he would wait.

Mr. B. L. Grow, a real estate broker and notary public, a resident of San Mateo, was a close friend and business adviser of Mr. Kelly since 1924. He handled his properties, and Mr. Kelly received his check from the Market Street Railway on the first day of the month at San Mateo. His mail was directed to San Mateo in care of Mr. Grow. He visited San Mateo in the forepart of each month, and frequéntlv two or three times a month. On one or two occasions he 'had Mrs.

James Casey, an employee of the Market Street Railway, had known Mr. Kelly more than twenty years. He met him after his return from the old country, and in the course of their conversation it developed that Mr. Kelly was living at a hotel, and hé said to him, “You shouldn’t live in a hotel; you should'live with your own people.” He replied that he could not live with them; could not get along with them. Mr.

Mrs. Eileen Byrne, who was an inhabitant of the same neighborhood in Ireland as was Mr. Kelly, and was a personal friend of Mrs. McCarthy, testified that a few months before he died he told her that he owned one-half of the house Mrs. Hand lived in and that he formerly lived there with her, but he could not get along with her; that his mail was opened and he had to leave his own relations.

Mrs. Florence Napier, an acquaintance of Mrs. McCarthy for more than twenty years, called on her a short time before Mr. Kelly died. She was out and Mr. Kelly engaged her in conversation while waiting for Mrs. McCarthy’s return. He said that he was living at a hotel and in reply to her question as to why he did not live with his relations he said he could not get along with them and they were not his kind. He said that Mrs. McCarthy was a grand woman.

Mrs. Jennie Hand’s testimony at least shows that she was indifferent as to the comfort and welfare of her brother, whom she testified was seventy-three years of age. She apparently justified her treatment of him on the ground that she saw him walking in the park on one occasion with Mrs. McCarthy. She said, presumably to the persons whom she was with, 1 ‘ It was too bad to be going around with a married woman; they might wait until her husband passed out.” Thereafter, when she returned home she found on the kitchen table the following note, written in his hand: “I am stopping at the Vendóme Hotel, Second and North B Streets, San Mateo. You can have everything here. I don’t want anything. Wishing you all sorts of good luck. You will be

The deposition of Martin Craevan, aged 82 years and a resident of San Mateo, was read into the evidence. The witness was too infirm to appear in court. He had known Mr. Kelly for six or seven j^ears. He visited and conversed with him at San Mateo several times a year. Mr. Kelly also had visited him when he was confined at St. Luke’s Hospital at San Francisco. A relatively short time before his death Mr. Kelly said to him, while they were visiting, that he was not going to leave his relatives any money; that he would leave it to charity rather than leave it to them. He said that he and Mrs. Hand owned a house “between them, a partnership, . . . and he could not get along with her and he told her so. He walked out, put his effects in an automobile, and went to Los Angeles and stayed there for five or six months and didn’t go back again.” Asked whether he mentioned Alice McCarthy by name, he replied: “I don’t think he called her by name, but I think a friend. I cannot remember.” Fourteen months before Mr. Kelly’s death he was confined by illness in the St. Francis Hospital. He had Mrs. McCarthy call up Mr. Eugene L. Byington, an official of the Market Street Railway, and tell him to come to the hospital

11 San Francisco, September 1, 1931.

“This is to' certify that the undersigned have entered into an agreement whereby Alice S. McCarthy (Friend) and Eugene L. Byington (Friend) will have equal shares in the insurance of John J. Kelly. These shares are to be used to pay the following costs:

‘ ‘ Undertaking services;

“Church services;

“Purchase of a niche in center of mausoleum;

“Mass for repose of soul.”

The above was signed by all parties thereto. Upon leaving the hospital he went to Mrs. McCarthy’s Ford Street home, where he recuperated and returned to the hotel.

The above transaction clearly indicates his faith in Mrs. McCarthy, and it is also characteristic of decedent’s strict business methods in all matters, including the most solemn, and it furnishes strong evidence that his mind was operating freely and unhampered in the performance of the most solemn acts of life. Surely he was not under the influence or domination of Mrs. McCarthy when he arranged that a policy in the sum of $1500 should be devoted to the payment of funeral and burial expenses. Every dollar of the above, and more, was expended in compliance with his wishes.

Charles G. Kelly, a bachelor brother, testified that Mrs. Hand had told him that she spoke to her brother about going out with Mrs. McCarthy and he went “woof”; got mad and left. He said he saw Kelly occasionally at McDonnell’s stock brokerage office. He talked to him when he met him in a street car or on the street, but he would not tell him where he stayed, except that he said he stopped at a hotel. Pie never had a meal with him after 1925.

Mrs. Walton, another sister of Kelly, went east to reside in 1928. She returned in 1932 and met him once on the street and he told her he had made a trip to Ireland. She never saw him again and did not know where he was. Her

Aside from the bank officials and the bank records themselves, Mrs. McCarthy gave the only testimony in the case as to the transfer of the bank accounts. She testified that Mr. Kelly requested her to meet him at Fourth and Market Streets in San Francisco at 2 P. M. on February 19, 1931, as he had some business to attend to. She met him at the appointed time and place. She asked him what he wanted her to do. He said he wished her to do him a favor and she said she would do anything for him. He then said, “I wish you to allow me to put your name on my bank book.” The deposition of the witness had been taken some time before the trial and she was examined in great detail from the deposition as to the order in which certain things were done and said at the time the transfers were made at the bank. In her deposition she stated that her reply to Mr. Kelly’s request that she allow him to place her name on the bank book was, ‘ ‘ Oh, certainly; I have my business fixed, Mr. Kelly, so if anything happens to me what I have is yours and you take care of the old lady.” Her recollection at the trial was that this was after the bank transaction; she was not sure as to the time but she was willing to abide by the deposition. She

Respondent assails Mrs. McCarthy as being evasive, equivocating and mendacious in her testimony and says that she was not honest or truthful as shown throughout her testimony. We have carefully examined her testimony and there is nothing in it, in our opinion, to sustain such charges. Respondent relies entirely upon the testimony of Mrs. McCarthy to sustain his judgment. Mrs. McCarthy was a widow 48 years of age who had been a housewife during the years of her majority. Her character stands unimpeached. There is no evidence in the record upon which a charge of immorality or venality could be sustained. The testimony of Mrs. Hand that on one occasion she saw Mrs. McCarthy walking with Mr. Kelly in the park, standing alone, is not sufficient to raise a suspicion of meretricious relations on her part. Mrs. McCarthy testified that the only time she was ever in the company of Mr. Kelly unattended by others during her husband’s lifetime was at the latter’s request, upon which occasion he asked Mr. Kelly to accompany her to the office of the public administrator or coroner to report the death in their home of a young man who had been a roomer there. They rode on a street car on that occasion. No testimony was offered at the trial which tended to impeach her in any way, unless the testimony of Mrs. Hand, by implication, had such a tendency.

Every witness that had occasion to speak of the character of Mrs. McCarthy, with the exception above noted, referred to her as a deserving and worthy woman. She was not a highly educated person, but she appears to have been well grounded in her duty in the common affairs of life. Respondent finds fault with her testimony with respect to some contradictions as to when certain events occurred. She was examined by respondent under the provisions of section 2055 of the Code of

Respondent stresses two other features of Mrs. McCarthy’s testimony. The first consisted in the fact that the witness, at the trial, enlarged on her testimony contained in the dep

Respondent claims that a confidential relation existed between the parties by reason of the contingent understanding of the parties that they were to intermarry; that Mrs. McCarthy is deemed a trustee. (Sec. 2235, Civ. Code.) He did not plead the existence of promise of marriage as the basis of undue influence, nor did the court make a finding that such relationship existed. Granting, however, without deciding, that under the relationship which existed between Mr. Kelly and Mrs. McCarthy a- confidential relation was established, the proof is so conclusive that the conversions of said bank deposits into joint accounts were not obtained by fraud or undue influence as to rebut any presumption of undue influence. The evidence, both record and oral, abundantly shows that said acts were freely and voluntarily done and there was no weakness of mind on the part of Mr. Kelly at any time prior to his fatal illness. While it is not necessary that a reason for his acts should appear, provided he was free of legal disability, nevertheless substantial reasons support said acts.

The influence which will avoid a deed cannot proceed alone from sympathy or affection for the grantee but must be such as to dominate the grantor’s will and coerce it to serve the will of another in the act of conveying, and a grantee who by his kindness and attention, won the affection of a relative, who executed a deed to him as he anticipated, did not thereby obtain the deed by undue influence. (Stroup v. Austin, 180 Ala. 240 [ 60 So. 879 ].)

Undue influence comprehends over per suasion, coercion or force that destroys or hampers free agency and will power of the testator, and mere affection or attachment or a desire to gratify the wishes of one beloved, respected and trusted may not of itself amount to undue influence affecting testamentary capacity. (Newman v. Smith, 77 Fla. 667 [ 82 So. 236 ].)

“Influence gained by kindness and affection will not be regarded as ‘undue’ if no imposition or fraud be practiced, even though it induce the testator to make . . . an unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made. Matter of Gleespin’s Will, 26 N. J. Eq. 523 .” (Mackall v. Mackall, 135 U. S. 167 [ 10 Sup. Ct. 705 , 34 L. Ed. 84 ].)

Many other cases of the same import may be added to those above cited. The facts of the instant case cannot withstand the test which the law prescribes. The evidence is without contradiction to the effect that decedent was a free agent, going from place to place at will, free to adopt his own course, and was not under the restraint of any person. He was a man positive of character, self-willed, mentally sound and independent in thought and action.

That his acts were the result of mature deliberation is further attested by the fact that he made a will in 1930 in which he devised his real property, of the value of about $7,000, to Mrs. McCarthy and his brother residing in Ireland. This will was treated as admitted in evidence at the trial, but as a matter of fact it was not included in the record on appeal.

The judgment is reversed.

Langdon, J., Curtis, J., Conrey, J., Shenlc, J., and Waste, C. J., concurred.

Rehearing denied.