Martindale v. Superior Court

Opinion

Petitioner seeks a writ of mandate to compel respondent

court to set aside its order denying her motion to dismiss a petition for revocation of probate of a purported will and codicils for failure to bring the matter to trial within two years (Code Civ. Proc., § 583).

Facts: In 1943, at the age of 65, Lucy May Wygant (hereinafter referred to as “decedent”) became a resident of what is now known as Kingsley Manor, the Methodist Church’s senior citizens residence in Los Angeles. In 1951, Charles H. Martindale and Olive M. Martindale, hus

February 9, 1956, decedent executed a will leaving all of her stocks to Aileen Curtis Erway, her niece and only heir, who lived in New York. December 13, 1958, at petitioner’s instance, decedent executed a codicil appointing petitioner executrix. December 19, 1958, she executed a power of attorney appointing petitioner her attorney in fact, and thereafter petitioner allegedly handled decedent’s banking for her. January 10, 1959, decedent executed a codicil, written in petitioner’s handwriting, in which she left petitioner her stock in the Valley National Bank of Phoenix, Arizona. Decedent died January 13, 1964. At the time of her death, the stock left to petitioner was worth over $29,000, which was more than half the value of decedent’s estate.

January 21, 1964, petitioner filed a petition for probate of decedent’s will, proper notice of which petition was sent to Mrs. Erway, decedent’s niece. March 9, 1964, an order was made admitting to probate as the last will of decedent the three documents above mentioned and appointing petitioner as executrix. Mrs. Erway died intestate August 13, 1964, and August 26, 1964, Edgard F. Erway, her husband and only heir (the real party in interest in this proceeding) was appointed administrator of her estate. September 4, 1964, Mr. Erway, as administrator, petitioned for revocation of probate.

In the meantime, petitioner had also become involved with the Martin-dales. In 1957, the Martindales, who at that time had been married for 65 years and had no surviving issue, agreed to execute reciprocal wills, under which the survivor would leave the residue of their estates to the Shrine Hospital for Crippled Children. May 15, 1957, they executed such wills. May 4, 1959, Mr. Martindale executed a codicil appointing petitioner co-executrix of his will, but he later revoked it.

In the fall of 1959, both of the Martindales were admitted to the hospital section maintained and operated by the rest home on the same premises as was the apartment theretofore occupied by them. April 11, 1960, petitioner was appointed conservator of the person and estate of Mrs. Martin-dale, and she thereafter qualified as such and took possession of the property owned by the Martindales at that time and held by them as community or joint tenancy property.

June 16, 1962, Mrs. Martindale died. At the time of her death, the Martindales owned a substantial amount of stock, the certificates for which stood in their names as joint tenants with the right of survivorship.. During

The Martindales had had a joint bank account at Cracker-Citizens National Bank, and after Mrs. Martindale’s death the funds in said account were transferred to a new account in the joint names of Mr. Martin-dale and petitioner, with the right of survivorship. July 2, 1962, Mr. Martindale executed a power of attorney appointing petitioner as his attorney in fact, and petitioner thereafter handled some of his banking.

In March 1963 certain stock owned by Mr. Martindale was sold for $96,235.48, and the proceeds were deposited in the bank account established in the joint names of Mr. Martindale and petitioner. Thereafter, $90,000 was withdrawn from the account and deposited in nine accounts in the joint names of Mr. Martindale and petitioner established at various savings'and loan associations. In January 1964, other stock was sold for $9,490.96, and in April 1964 additional stock was sold for $21,475.98. In each instance, the proceeds were deposited in the bank account established in the joint names of Mr. Martindale and petitioner. April 14, 1964, $20,000 was transferred from said bank account into a savings account at the same bank, which account was created at the time of said deposit and stood in the joint names of Mr. Martindale and petitioner,

April 22, 1964, Mr. Martindale and petitioner were married in petitioner’s cottage located on the grounds of Kingsley Manor. At that time, Mr. Martindale was 91 years old and bedridden, and petitioner was about 70. April 26, 1964, at petitioner’s instance, Mr. Martindale executed a will purporting to revoke his prior will and leave his entire estate to her. He died May 16, 1964. Thereafter, petitioner caused all the funds in the bank accounts and the savings and loan accounts to be transferred to her name alone.

Petitioner petitioned for probate of the will executed by Mr. Martindale April 26, 1964, and the Shrine Hospital for Crippled Children filed a contest thereof, alleging that at the time of the execution of the purported will Mr. Martindale was acting under the undue influence of petitioner. Subsequently, the Shrine Hospital filed a civil action attempting to impose a constructive trust on the property received by petitioner from Mr. Martindale.

April 17, 1969, petitioner filed a notice of motion to dismiss Mr. Erway’s contest in the Wygant estate matter. At the time the contest was filed, Mr. Erway was represented by Ralph W. Hoffman. In a declaration filed by Mr. Hoffman in opposition to the motion to dismiss, he states that in 1965, after the answers of the various respondents had been filed, he interviewed

In a declaration by Mr. Rochester in opposition to petitioner’s motion to dismiss, he states that he associated Richard B. Newton as co-attorney for real party in interest, and they both proceeded to interview Dr. Cecil L. Shotwell, decedent’s physician, Mr. George M. Morgan, the superintendent of Kingsley Manor, and Mrs. Mae Hodges, who was one of the decedent’s nurses for many months; that such persons are willing to testify that at the time decedent signed the codicils to her will December 13, 1958, and January 10, 1959, she was “incompetent, confused from dementia senility and other maladies caused by her advanced age of 81 years”; that within a few weeks he served notice to take petitioner’s deposition upon Mr. Lasky set for March 26, 1969; that Mr. Lasky and petitioner failed to appear, and as he was preparing sanctions, Mr. Lasky telephoned his misunderstanding as to the date and asked for a continuance to April 4, 1969, to which he agreed; that shortly before April 4, 1969, Mr. Lasky telephoned and asked that the deposition be continued to April 23, 1969, due to a conflict in his appointments, and he agreed to such continuance; that April 21, 1969, Mr. Lasky telephoned and asked for another continuance on the plea that it should wait until the disposition of the hearing on the motion to dismiss (filed by petitioner April 17, 1969) May 2, 1969, promising that he would stipulate to the earliest date subsequent to May 2, 1969, for the taking of the deposition; and that he agreed to Mr. Lasky’s request.

Mr. Rochester asserts that he and Mr. Newton acted with due diligence after being substituted as attorneys for real party in interest; that “to dismiss the objections to the bequest to [petitioner], contrived by her preparation of the last Codicil to decedent’s will and then having the mentally incompetent and confused decedent scrawl her almost illegible signature to the previously prepared document would be a miscarriage of justice and an illegal and unjust enrichment of a total stranger . . . with over $29,000”; and that the stock rightly belongs to real party in interest, under decedent’s will dated February 9, 1956, which will was executed at a time when decedent was competent and had her normal mental faculties.

After lengthy arguments, respondent court June 10, 1969, denied petitioner’s motion to dismiss and set the matter for trial August 25, 1969.

Question; Did the trial court abuse its discretion in denying the motion to dismiss the petition for revocation of probate?