Hopkins v. Hopkins

W. S. Hopkins, usually called Earl Hopkins, died on August 4, 1931, leaving a will executed on July 18, 1931, which was duly admitted to probate on August 21, 1931. On February 3, 1932, the contestant filed a petition asking that the probate of this will be revoked on three grounds, to wit: That the deceased was of unsound mind on the day the will was executed; that the will was procured by the undue influence, of Dr. E. L. Hopkins; and that the will was procured by false and fraudulent representations made by Dr. E. L. Hopkins. A jury found in favor of the contestant on each of the grounds named. The proponents moved for judgment in their favor notwithstanding the verdict. This appeal is from an order denying that motion and from the judgment entered, and is based entirely on the insufficiency of the evidence. This contention will be considered in connection with the several grounds of contest in the order named.

The deceased, who was about sixty years of age at the time of his death, had lived for many years in a small house owned by his brother, Dr. E. L. Hopkins, on the

We will first summarize the evidence relied upon by the contestant as showing that the deceased was of unsound mind at the time the will was executed. The deceased quit his job about the middle of May, 1931, on account of his health and all of the witnesses are agreed that he was very much concerned over his physical condition and that he thought he was going to die. The contestant testified that her husband always had great affection for her; that he had been failing for over a year and gradually grew worse; that he thought he had cancer and heart trouble; that before they were married she' went with him to see a doctor who told him he had a nervous'heart; that she first noticed him failing mentally during the last three or four days of April when, after turning a handspring, he remarked ‘1 am all shot”; that he was very restless and could not sleep; that he would beat his head with his hands until it was black and blue; that he once remarked that he could not do anything but think; that at one time he threatened to commit suicide; that he became very nervous when anyone came around and did not talk very much; that during the last few months he objected to going out with her friends, saying he did not want anyone to know he was so nervous and

The doctor called in by the contestant, an osteopath, testified that he treated the deceased on June 29 and on July 1, 1931; that the deceased told him he was having difficulty with his heart and his digestive apparatus and that the only way he could get any sleep was to get out and walk until he was exhausted; that the deceased was very depressed and complained of an inability to swallow; that he diagnosed the trouble as melancholia; and that the inability to swallow was characteristic of such a nervous condition. He concluded that he was unable to say whether or not the deceased could have transacted ordinary business. The doctor to whom the deceased was taken by his brother testified that he made a thorough physical examination on July 14, 1931, and visited him on July 16th and again on July 23d; that the deceased thought he had something growing in his stomach which he thought was cancer and also thought there was something wrong with his lungs; that he had previously treated him for a peculiar growth on the back of his hand which resembled a skin cancer, about which the deceased was very much worried; that at the time of the examination the deceased thought he had another cancer growing in his stomach; that this examination revealed nothing wrong of a pathological nature but indicated that his condition was the result of nervous tension; that-he did have indigestion and a pressure on his lungs which extended into the esophagus; that this pressure was not due to a growth but was due to nervous tension and to gas formation; that he was suffering physically, but this suffering was caused by the nervous tension which in turn was caused by worry; that the patient told him he had worried over the depreciation of stocks and bonds to the extent that he could not eat or sleep; that he had the idea he was going

Other witnesses who testified as to the mental condition of the deceased during this period include the following: One witness testified that he observed a difference in his mental capacity about the time he stopped working; that one day he came to his office and wanted to sell a mortgage at a discount of $400 in order to invest the money in San Joaquin Light & Power stock; that he considered him crazy because he wanted to discount such a mortgage to that extent; and that toward the last he had a way of winking his eyes, was very nervous and could not sit still. Another witness testified that she had always found him very friendly; that he was all right except for being nervous until a few months before his death, but that on July 18, 1931, she thought his mind was unsound. As a reason for this belief she stated that shortly before he went to Santa Cruz he would sit on the floor, instead of on a chair, and tear up pieces of paper; that at other times he would roll up and unroll his belt; that he told her he was not going to live, that he was all shot to pieces, that he could not sleep, that the doctors could do him no good, that he had heart trouble, a cancer and a big lump in his throat, and that he could not get his breath good; that he would hit his fingers upon his head and run his fingers back and forth on his head and continually blink his eyes; that he was in a very nervous condition; that he told her that he would not care to live if he could know that his wife was taken care of; that he talked a great deal about his financial affairs and was worried about money losses; that sometimes when she talked to him he answered and sometimes he did not; and that on one occasion she found him outdoors talking to himself. Another witness testified that he thought he was of unsound mind in June and July, 1931, because when he attempted to converse with him he would be twitching his hands, tearing papers in small pieces and laying them on the ground, and because sometimes he would leave in the midst of a conversation and after being gone about

Other witnesses testified that he complained of being sick and constantly was worred over the decline in value of stock and other securities; that he frequently expressed a willingness to die if he could be sure that his wife would be taken care of; that he was more preoccupied and his face twitched more than formerly; that he had always blinked his eyes but this grew worse during the last few months; and that he had always preferred to sit on the floor even when chairs were available.

A few days after the will was signed the deceased and his wife went to Santa Cruz for a vacation. The deceased drove his own car but they were accompanied by Dr. Hopkins and his wife in another automobile. The four stopped for lunch at Gilroy and while they were eating lunch the deceased spoke of his mother who was buried in their family plot near that city. At this time he broke down and cried and told the others that if he should die they would not have far to take him to bury him.

The contestant also relies on the fact that the deceased may have committed suicide. While on the vacation at Santa Cruz and on Friday morning, July 31st, the deceased disappeared. After an intense search his cap was found one evening and the next morning, August 4th, he was found in the hills back of Santa Cruz at the foot of a rather steep incline and lying among some rocks, this place being about seven hundred feet from where his cap was found. He was still alive and recognized his brother but died that afternoon. Whether his death was the result of an accident or by suicidal intent has never been determined.

There was evidence on behalf of the proponents to the effect that the deceased continued to take care of his private business up to the time he left for Santa Cruz, a few days before his death; that he anxiously read market reports in the papers until the last'; that he kept a book in which he systematically recorded all of his investments and in which he carefully entered all changes and all interest and dividends received; and that this contained a number of entries during June and July, including one on July 17th and two on July 15th. These entries were all in his writing although his wife testified that she assisted him during the last few

The deceased’s attorney had offices adjoining his brother, Dr. Hopkins. At his request his brother made an appointment with this attorney. On the morning of July 15 or July 16, 1931, the deceased went alone to the office of this attorney and gave him the data for drawing this will. This attorney testified that no one else was present and that the deceased told him what he wanted put in the will; that everything contained in the will was suggested by the deceased, with the one exception that will be noted; and that the deceased told him that he wanted to give $1,000 to his brother’s son on condition that the nephew take care of his own father, that he wanted to give the household furniture, his automobile and $5,000 to his wife, and that as to the remainder he wanted to create a trust in favor of his wife. The attorney asked him if he also wanted to give his home to his wife and he replied that he did not own his home. While they were talking about the terms of the will the deceased’s brother, Dr. Hopkins, came to the door of the room for a moment and, having heard them talk about $5,000, suggested that some time should be allowed in which to raise that amount in cash. This suggestion was followed

“I discussed each and all of the provisions of the will with him and told him at that time that it would be necessary for me to include in the will a number of things relative to the handling of the property, such as loaning, buying, and selling, etc. I told him I would include those provisions in the will and he could read it and execute it if it met with his approval. I tried to state the substance of what I would put in the will. I told him I would telephone him when I had the paper prepared, and he says, ‘I have no telephone—you can send word by the Doctor. ’ I think I went in the Doctor’s office the afternoon before Earl signed it and told Dr. Hopkins to tell Earl I had the will prepared and left a copy of the will and asked the Doctor to take it to Earl so that he might read it over at his leisure and see whether it was satisfactory. Earl came in the office next “morning. I told him I had the will prepared and said ‘now you better sit down here and I will read it over to you’. He sat there and I read the will from beginning to end. He asked me some questions about some parts of it and I remember particularly of explaining the spendthrift clause which is the ninth paragraph of the will to him. I told him that provision was for the protection of Mrs. Hopkins; that it prevented attachments and incursions into the estate prior to its payment to her and he seemed to think it was a good provision. He seemed to understand the will thoroughly and I says, ‘Is the will satisfactory to you Earl in every respect. ’ He said it was, and I asked him if he was ready to execute it and he said yes, and I said, ‘If you will call your witness we will execute it.’ He went out of the office and came back pretty soon with Mr. Baird. I spoke to Mr. Baird and says, ‘Earl is making his will— and he wants you and me to act as witnesses. ’ Mr. Baird said ‘All right, ’ and I says to Earl, ‘Do you declare this to be your last will and testament, ’ and he said he did, and I asked him if he requested Mr. Baird and myself to attest it as witnesses and he said he did. He signed it and Mr. Baird signed it next and I signed it last, although my name appears above Mr. Baird’s on the will. No one other than those whom I have just mentioned were present in my office at the time of the execution of the will ”

“I folded the will and put it in an envelope on which I had written ‘last will of W. S. Hopkins, dated July 18, 1931’, and sealed it and handed it to him. Mr. Baird went out and Earl and I went into my reception room and sat down and I asked him about his health or asked him what was the matter with him, and he said, ‘Well my nerves are all shot to pieces.’ I asked him if he had consulted a Doctor and he said ‘Tes, Dr. Ingram has been treating me.’ We talked on that way for quite a little while and he left and took the will with him. As he arose to go out he says, ‘Well what shall I do with the other will? Shall I destroy it, burn it, tear it up?’ I asked him if he had another will and he said yes and my recollection is that he said it was in his safety deposit box. I told him it made no difference inasmuch as this will revoked all former wills, but I think I said, ‘It isn’t always well to have too many wills hanging around. ’ But he was on his way out and made no response.”

“I had occasion to observe Earl Hopkins rather closely during those last two visits to my office; I had considerable conversation with him and had occasion to observe his actions and general demeanor and I think he was of sound mind on the 18th day of July, 1931. There isn’t any doubt in my mind on that point.”

‘‘I think he executed the power of attorney on June 23rd, 1931, and the only difference that I noticed in W. S. Hopkins on either of those last three visits was that he seemed somewhat depressed and was not as voluble, as jocose as usual. He wasn’t laughing as he had done before. He seemed to be depressed as a man might if he had a bilious attack or something of that sort. But he manifested no particular nervousness on the day the will was executed. He sat in the chair as quietly as I am sitting here. There was no shuffling or nervous demonstration such as has been described by witness—nothing that attracted my attention in any respect.”

The other witness to the will testified as follows:

“I have known Earl Hopkins for 10 or 12 years and saw him quite often. I saw him on the 18th day of July, 1931. Met him at the Cooper Building. He telephoned me and asked me to come to the Cooper Building. Said he wanted me up there for a few minutes. He was waiting for me at

the head of the stairs, and we went into Mr. George W. Jones’ office. Only the three of us were there and Mr. Jones asked Earl if this ‘was his last will and testament’, and he said ‘yes’ and walked up and signed it, and we both signed it and I left. When I first went up Earl told me he wanted me to witness a will. Mr. Hopkins signed, and then Mr. Jones and I. We all signed at the same time in the presence of the testator and in the presence of each of us. In my opinion he was of sound mind when he signed that will. ’ ’

No other evidence was offered as to the mental condition of the testator at the exact time the will was executed. There was also evidence that he had his home newspapers forwarded to Santa Cruz and read them; that he had his automobile reinsured just before leaving for Santa Cruz; that he requested his brother, Dr. Hopkins, to get the bill for this insurance when the latter returned to Fresno and pay the same for him; that he asked his brother to forward his mail and also to look at his home for his glasses; and that he was able to drive .his automobile before, during and after the trip to Santa Cruz. That the contestant did not consider the deceased incompetent after the will was executed is indicated by her testimony concerning the occasion when he later explained the provisions of the new will to her and she expressed her dissatisfaction therewith, at which time she plainfy indicated an intention to have him change the same. She testified that around the first of July, 1931, she tried to get him to go east for his health and that he made several trips down town alone around July 18th.

While it appears that the deceased at the time of making this will was a sick man and that he was highly nervous and much depressed, the evidence is far from sufficient to show general mental incompetency or that he was not then possessed of sufficient mental capacity to be able to understand the nature of the act he was doing, or that he did not have an understanding and recollection of the nature and situation of his property and of his relations to the persons who had a natural claim upon his bounty. (Estate of Sexton, 199 Cal. 759 [ 251 Pac. 778 ]; Estate of Perkins, 195 Cal. 699 [ 235 Pac. 45 ]; Estate of Clark, 100 Cal. App. 357 [ 280 Pac. 204 ].)

The delusions referred to are that he was afflicted with heart disease, that he was afflicted with cancer, that he was about to have a stroke, that he was going to die, and that in the event of his death some crook or designing person would defraud his widow out of the property which he might leave to her. It is practically conceded, as it must be, that the first three of these are not such delusions as, in themselves, could affect the terms of a will but it is earnestly insisted that the last two, taken together, constituted a delusion which not only affected the will but deprived the testator of all testamentary capacity. It is argued that before he became thus incompetent the testator entertained the deepest affection for his wife; that in 1926 he made a will giving all of his property to her; that his later fear that his widow might he defrauded was entirely groundless; that as a result of this delusion he executed the second will; and that the terms of this last will are such as to deprive the contestant of all that naturally and normally would have been given her by the testator, and in effect to cut her off with a mere pittance.

We are unable to agree with the contention made that this will was so unnatural and so clearly based upon a groundless fear as to have been the result of an insane delusion. There is no evidence in the record justifying the view that this fear was entirely groundless. There is evidence that the deceased knew or believed that a certain Mrs. Swift had had such an experience. The situation he feared is one that frequently occurs and in the light of common experience this fear cannot, of itself, be considered as sufficient evidence of an insane delusion. At the time the will was drawn the deceased was about sixty years of age and his wife was about forty-five. They had no chil

In our opinion, the evidence does not sustain the finding of the jury that the deceased was of unsound mind, either as lacking testamentary capacity in general or as suffering from such a delusion as would affect and nullify his ability to make a will.

With respect to undue influence, the contestant alleged in her petition that the testator was so afflicted in mind and body that he was unable to understand or transact business; that because of this fact he relied upon and followed implicitly the directions of his brother, Dr. Hopkins, in all business transactions; that thereby Dr. Hopkins acquired and had a controlling influence over him; that Dr. Hopkins exercised this influence and control by telling him that his wife could not take care of the property of his estate but would waste and squander the same; and that Dr. Hopkins demanded that the testator devise all of his property to him in trust, for the purposes set forth in the will. We are unable to find any evidence establishing the facts thus alleged. In Estate of Bryson, 191 Cal. 521 [ 217 Pac. 525 ], the court said:

“ ‘In order to establish that a will has been executed under undue influence, it is necessary to show, not only that such

influence has been exercised, but also that it has produced an effect upon the mind of the testator by which the will he executes is not the expression of his own desires. ’ (Estate of Calkins, 112 Cal. 296 [ 44 Pac. 577 ].) . . . Proof to establish undue influence must be had of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made. (Estate of Carithers, 156 Cal. 422 [ 105 Pac. 127 ].) ... It consists in the exercise of acts or conduct by which the mind of the testator is subjugated to the will of the person operating upon it, some means taken or employed which have the effect of overcoming the free agency of the testator and constraining him to make a disposition of his property contrary to and different from what he would have done had he been permitted to follow his own inclination or judgment. ’ ’

In Estate of Clark, 170 Cal. 418 [ 149 Pac. 828 ], it is said: “The fact that advice was offered to Mr. Clark taken in connection with the activity of Mrs. Straus in securing counsel for him, fails to establish that sort of undue influence which must be shown before a court will overthrow a solemnly executed will. The evidence utterly fails to reach the dignity of proof of that sort of pressure which overpowered the mind and mastered the volition of the testator at the very moment of the testamentary act. Without such proof no will should be held invalid on the ground of undue influence. (Citing cases.) ”

Again, from the Estate of Anderson, 185 Cal. 700 [ 198 Pac. 407 ] : “It is not undue unless the pressure has reached a point where the mind of the person subjected to it gives way before it so that the action of such person taken in response to the pressure does not in fact represent his conviction or desire, brought about perhaps by argument and entreaty, but represents in truth but the conviction or desire of another. As was said in Estate of Donovan, 140 Cal. 390 , 394 [ 73 Pac. 1081 ], quoting from Chaplin: ‘The true test of undue influence is that it overcomes the will without convincing the judgment. ’ ”

The contestant maintains that undue influence was here established because the will last executed was unnatural, because it conclusively appears that it was at variance with the decedent’s real testamentary intentions, and because

“Undue influence may be established by circumstantial evidence, but ‘ “it must, however, do more than raise a suspicion. It must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator. I think there is nothing beyond suspicion shown here. ’ ’ ’ (Estate of Anderson, 185 Cal., at p. 709 [ 198 Pac. 407 , 411], quoting from Estate of McDevitt.) ‘There is no proof. Circumstances have been proven which accord with the theory of undue influence, none of which are inconsistent with the hypothesis that the will was the free act of an intelligent mind. This does not amount to proof, and many circumstances are shown which are wholly inconsistent with the hypothesis of undue influence, and the presumption of law, in the absence of all proof in a contest, is in favor of the will.’ (Italics ours.) (In re Calkins, 112 Cal. 304 [ 44 Pac. 577 ], quoting from

the Estate of McDevitt.) We also quote the following from notes in In re Hess ( 48 Minn. 504 , 51 N. W. 614 ), at pages 687 and 688 [of 31 Am. St. Rep.] : ‘To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that the party benefited by the will had the motive or the opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist, or by deception, fraud, or. other improper means, that the instrument is not really the will of the testator . . . The burden of proof being on those who attack a will on the ground of undue influence, it is not sufficient that they barely show that the circumstances of the will are consistent with the hypothesis of undue influence; for this would be but to create an equipoise in the testimony, and the onus being on the party attacking the will, he must go a step further, and show by any suitable evidence the inconsistency between circumstances of the execution of the will, and its being executed without the interposition of undue influence. ’ ”

The following language used in Estate of Jones, 117 Cal. App. 163 [ 4 Pac. (2d) 251 ], might well have been written for this case: “ ‘The contention of respondents, when thoroughly sifted, seems to be about this: That there is evidence to the point that appellant had a general influence over the deceased which ought to be classified as “undue”; and that, therefore, although when he made his will, under the circumstances above stated, he was apparently free to act as he pleased, yet it must be inferred that this general influence of appellant accompanied him, subverting his volition and coercing him to act against his real wishes. To maintain such a strained and difficult theory would require evidence very different from that presented in the record. ’ ’ ’

The claim that fraud was practiced upon the deceased by Dr. Hopkins is based upon the testimony of the contestant to the effect that her husband told her a few days before they went to Santa Cruz that the will of July 18, 1931, was just the same as the old will except that he had appointed Dr. Hopkins as executor and afterwards as trustee, and that he further told her that Dr. Hopkins had told him that the new will did not change the devises and bequests

The judgment and order appealed from are reversed.

Marks, J., and Jennings, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on March 6, 1934.