Carleton v. Bonham

In this action Melville B. Carleton sued his sister, Anna Bonham, and her husband, Lyman L. Bonham, and his sister’s five children and his own daughter Ruth Melrose Carleton, for the purpose of having set aside and canceled certain deeds made in favor of the several defendants by the mother of the plaintiff and his said sister. The plaintiff charges the defendants with having obtained the deeds by means of fraud and undue influence exerted and practiced by them upon the mother at a time when she was sick and incapable of transacting any business. The court found against plaintiff on all the material issues of the complaint and directed judgment in favor of the defendants, from which judgment plaintiff appeals.

In December, 1919, which was perhaps a month or six weeks after the will was drawn, Mrs. Hildreth, who for about two months before that time had been living in a cottage with a colored woman named Mrs. Smith, who was a janitress and who looked after Mrs. Hildreth at night and prepared some of her meals for her, went to live with her daughter, Mrs. Bonham, in one of Mrs. Hildreth’s houses in Brawley. Mrs. Hildreth was on friendly terms with the plaintiff, who lived in Los Angeles, and during the last few months of Mrs. Hildreth’s life she visited her son in Los Angeles and he visited his mother at Brawley on one or two occasions. Mrs. Hildreth and Mrs. Bonham had joint checking accounts in two different banks at Brawley, and Mrs. Bonham had an individual checking account.

[1] Appellant has specified many particulars by which he contends that the court committed prejudicial error as to his rights. His first specification of error is that the court erred in excluding the testimony of the witness Mamie Smith, as follows:

“Q. How was? Tell the court her condition at that time. A. When I went in she was so bad off she asked me, ‘Where is Mel?’ Mr. Brown: Now we object to what was said. The Court: Sustained,”

Immediately following the order of the court sustaining the objection the following occurred:

‘‘Q. Was Mrs. Bonham present? A. She let me in; she told me to go in. Q. Was she there when her mother asked you where Mel was? A. Yes, sir; and I turned to Mrs. Bonham and said, ‘Why don’t you write to him and tell him?’ Q. What did her mother say about that? A. She asked me to go tell Mel that she wanted him.”

It will be noted that, although the objection was sustained, no motion was made to strike out. Furthermore, that the same matter to which objection was made came in immediately afterward without objection; consequently appellant could not have been prejudicially affected by the fact that the objection was sustained in the first instance.

“A. When the little girl came to me, she [Mrs. Hildreth] was wringing her hands and screaming and crying and going on because she was all alone and didn’t have any place to die in where she could have peace and comfort. She said, ‘Ada, I have done for everyone— Mr. Brown: Object to that. The Court: Any statements she made can’t be competent.”

From an examination of the transcript it appears that the question which brought out the matter to which counsel refers was put to the witness by one- of the attorneys for defendants and that the objection to the answer was not made by either of the attorneys for plaintiff, but was made by another of the attorneys for defendants. Moreover, there was no motion by any of the attorneys to strike out and the record is silent regarding any effort to show what the witness would have testified to had she been permitted to finish her answer. Certainly, no prejudicial error may be predicated on such a record.

[3] The third specification of error relates to the overruling of an objection to a question asked by one of the attorneys for defendants of a witness who was a bank clerk in one of the banks where Mrs. Hildreth had her joint checking account with Mrs. Bonham, and with which clerk Mrs. Hildreth generally transacted her banking business—the record showing as follows:

“Q. I’ll ask you whether in all her business transactions at the bank she appeared to be keen mentally and a business woman. Mr. Allen: Objected to as incompetent, irrelevant, and immaterial; no foundation laid, and directly leading; calling for a conclusion. The Court: Overruled. A. She did.”

Counsel argues that “neither the question nor the answer thereto referred to any period of time, and therefore incompetent, and as to whether or not she was a business woman, is both irrelevant and immaterial. The question clearly calls for a conclusion and is leading.”

The transcript of the testimony fairly shows that the time referred to was, at most, not more than a year before the death of Lydia E. Hildreth. "While the question was

[4] Specification of error No. 4 has to do with the refusal of the court to grant plaintiff’s motion to strike out all the testimony given by witness Wilson, because of the fact that the relation of attorney and client existed between him and Mrs. Hildreth. The particular statement made by the witness, to which objection is made, is as follows:

■“Mrs. Hildreth called me to her residence, Mrs. Bonham’s place, and she was confined to her bed, and asked me to prepare these deeds.”

The reporter’s transcript on appeal shows, immediately after the foregoing statement, the following:

“Mr. Hocker (Attorney for Defendants): I move to strike out what Mrs. Hildreth said, if he referred to Mrs. Hildreth telling him to prepare the deeds, for the reason it is incompetent. Move to strike out any conversation or statement made by Mrs. Hildreth with reference to this transaction.

“The Court: I’ll grant the motion.”

It would therefore appear that as to that particular statement of the witness, and it being the only objectionable one pointed out by appellant, the error, if any, was cured by the court in granting appellant’s motion to strike same from the record.

But assuming the rule to be contrary to what actually is the case, that it is the duty of this court to search the record to determine whether testimony other than that specifically referred to by appellant may possibly come within the specification of error, it still appears that counsel’s position is untenable, as illustrated in the case entitled Estate of Nelson, 132 Cal. 187 [ 64 Pac. 296 ], where the court, in discussing a question similar to the one here involved, said: “The proponents afterward called as a witness Mr. Goad, who had drawn the codicil of October 20th, and, against the

In addition thereto, the testimony given by Mr. Wilson shows that at times Mrs. Bonham was present during the conversations, the testimony referred to being as follows:

“Q. Who did you talk with when you went to the residence? A. Mrs. Hildreth. Q. Was anyone present? A. Mrs. Bonham was there. Q. She was there each time you were talking with her? A. I think she was. Q. And there at the time the deeds were signed? A. I don’t know she was there at the time they were signed because she wasn’t in the room very much as she was in the house.”

If the testimony may be construed to the effect that there was a third person present, there was nothing really confidential about the several conversations between Mr. Wilson and Mrs. Hildreth—the rule in such cases, which is so well understood as to require no citation, being that communications made by a client to an attorney in the presence

[5] Specification of error No. 5 deals with an alleged error of the court in permitting Mrs. Bonham, one of the defendants, to testify, over the objection of plaintiff’s attorney, as to what work she did during the early years of her life while she was living at home with her mother, the answer being that she lived on a ranch and did nearly all the housework. In view of the fact that undue influence is one of the issues in this case, the relationship and the position of the daughter in the household of her mother was material, relevant, and competent, and it follows that there was no error committed by the court in admitting the testimony to which objection was made.

[6] In specification of error No. 6 appellant asserts that a conversation between Mrs. Bonham and Mrs. Hildreth concerning some furniture, and in specification No. 7 a statement by Mrs. Bonham regarding the value of the amount of her share of the income property concerned herein—all of which was introduced into evidence by defendants and objected to by plaintiff—amounted to prejudicial error because it was in violation of section 1880 of the Code of Civil Procedure; but an examination of that section will show that it has no application to a case of this kind.

[7] By specification of error No. 8 it is claimed the court erred in admitting testimony given by Mrs. Bonham to the effect that her husband gave her some checks which the witness later testified were deposited in the joint bank account of Mrs. Hildreth and Mrs. Bonham. The objection that this testimony was incompetent, irrelevant, and immaterial was not well taken, as it had a direct tendency to show the business dealings and relationship existing between the mother and the daughter, especially as to the joint banking account.

[8] Specification of error No. 9 relates to an alleged error by the court in sustaining an objection to a question calling for a conversation, but at the time the objection was made the proper foundation for the question, which was impeaching in its nature, had not been laid; hence the objection was properly sustained. However, as the proper foundation was immediately laid, the witness was permitted to answer the question without objection.

Dealing, then, with the remaining general specification of undue influence, the evidence received by the court, as given by three witnesses, was to the effect that about the 1st of September, 1919, which would be about four months before all the deeds but one were executed, Mrs. Hildreth was nervous, crying, and hysterical; that Mrs. Bonham was also crying, and the mother and daughter were quarreling over some bedroom furniture and a lot or some lots—Mrs. Bonham contending that while Mrs. Hildreth had given the furniture, consisting of a dresser and a commode and a bedstead, to Mrs. Bonham some two years before that time and that Mrs. Bonham had had the use and possession of it during all the intervening period, Mrs. Hildreth at the time they were quarreling had already, in the absence of Mrs. Bonham, taken back the furniture and then wished to make other disposition of it by dividing it between two of Mrs. Bonham’s young daughters; and in regard to the lot, Mrs. Bonham was insisting that Mrs. Hildreth deed that lot to Mr. Bonham, as she had theretofore agreed to do, in payment of labor which Mr. Bonham had performed for Mrs. Hildreth. There was also some testimony .by one or two of the witnesses, in substance, that Mrs. Bonham had said that

It appears in evidence that the furniture was later returned to Mrs. Bonham and that the lot was deeded to Mr. Bonham on October 18, 1919, for “labor performed,” which would be approximately six weeks after the date of the quarrel between Mrs. Bonham and Mrs. Hildreth, as testified to by the several witnesses.

The only other direct evidence which tended to establish plaintiff’s case on the issue of undue influence was certain testimony to the effect that during the last three or four months of Mrs. Hildreth’s life the rents were collected by Mrs. Bonham, and that for a considerably longer period Mrs. Hildreth and Mrs. Bonham had joint checking accounts in two different banks at Brawley. Opportunity to exert undue influence was shown by the fact that at the time the deeds were drawn, and for perhaps thirty days prior thereto, Mrs. Hildreth, who was quite ill, was living in the same house with Mrs. Bonham who was caring for Mrs. Hildreth during all that time.

With reference to the quarrel between the two women, Mrs. Bonham denied having made the exact statements which some of the witnesses testified she made, but said that she charged her mother with being an “Indian,” that is, that after having made a gift she would take it back, and that her mother cried because Mrs. Bonham had called her an Indian. Mrs. Bonham’s testimony shows a long line of devotion to her mother and service in her behalf. She tes

“Q. I’ll ask you if you know how the deeds were to be made that were made, or who was going to get the property, prior to the time the deeds were executed? A. No, sir. Q. When Mr. Wilson came there as notary public prior to the execution of the deeds, did you have any knowledge about how she was going to dispose of her property? A. No, sir. She just said she was going to deed them and have it over with; a thousand dollars would be charged anyhow for probating it, and she said she was through with her property. Q. She was going to make deeds and settle it without probate ? A. Yes, sir. Q. To save that expense ? A. Yes, sir. Q. I’ll ask you, then, whether or not, so far as you know, that the deed she made on the 29th of December, 1919, was made in accordance with her will and wish and without any influence or duress or fraud or anything of that kind. A. Yes, sir.”

With reference to the joint bank accounts, Mrs. Bonham testified that her husband’s wages went into those accounts, and that she rented her own piano for a year and later sold it for a hundred dollars, and those receipts were also turned into the joint bank accounts; that receipts from sales of chickens and eggs which belonged to her personally went into her private bank account.

Mrs. O’Bienes, who for two years, between 1917 and 1919, lived “right across the alley” from Mrs. Bonham and Mrs. Hildreth, never saw either of them crying or heard them having any dispute over the furniture. G. R. Beasley, a son of Mrs. Bonham, never saw any difficulty between them and never heard either his mother or his father try to influence Mrs. Hildreth with reference to the disposition of her property. The testimony of Mr. Wilson, attorney at

[9] Counsel for appellant concede the rule of law in a case of this kind to be that the mere fact that a conveyance is made by a person to his child “does not render the deed presumptively invalid.’’ In 17 Ann. Gas., at page 989, it is said: “The courts have universally held that no pre

[11] General influence, however strong, is not undue influence. The opportunity may be present and the grantee may suggest or advise or give good reasons, such as appeal to the affections, or sentiments of gratitude for past services, or even argue with the grantor and thus persuade him to deed his property to him; and in the absence of any showing or any presumption that the importunity was such that it could not be resisted by the grantor, and that the very act of the grantor in executing the deed was the result of force or coercion or something of that' nature, which broke down his will or destroyed his free agency at the time the deed was executed—undue influence cannot be said to exist. Undue influence in the execution of a deed must arise from a confidence reposed by the grantor in the grantee, with the added feeling on the part of the grantor that the grantee has some power or authority over him; and it must appear that such power or authority was used by the grantee on the will of the grantor for the purpose of obtaining an unfair advantage of his weakness of mind or

There is nothing here that indicates with any clearness that Mrs. Hildreth was in the least affected by anything or by any act or conduct emanating from the daughter. True, she returned the furniture to her daughter, but the furniture already 'belonged to her. True, she made a deed to M'r. Bonham of the lot regarding which the two women had their quarrel, but the evidence showed that she owed it to him for “labor performed” and that she was simply paying her debt in the manner in which she had theretofore agreed to pay it. The furniture was returned shortly after the quarrel, and the deed to Mr. Bonham was made within six weeks thereafter. The will was executed within two months, while all the other deeds were not executed until after the expiration of four months from the date of the quarrel. If the execution of these deeds was brought about through the exercise of undue influence, it would seem reasonable and probable that they should all have been executed at the time the deed was made to Mr. Bonham, or, failing in that, that the will, which was practically identical with the deeds as far as plaintiff is concerned, with the exception of this particular piece of property, should have disposed of the matter completely at that time, subjugating the will of Mrs. Hildreth to that of Mrs. Bonham and to the entire satisfaction of Mrs. Bonham.

[12] In this case, while the opportunity for the exercise of undue influence undoubtedly existed, and while the law of this state appears to be that in circumstances such as the evidence shows' were here present, the burden is cast upon the grantee to show that the gift was made freely and voluntarily and with perfect understanding of the effect of the transfer, the findings of the court based upon the testimony of many apparently credible witnesses preclude any conclusion other than that at all times, including the act of the execution of the deeds, the grantor was acting with the utmost freedom, of her own volition and with the greatest clarity of her mental perceptions, which, according to all the witnesses, was far above the average of ordinary

The findings of the court on all issues of fact were against plaintiff’s contentions. A careful review of the evidence contained within the reporter’s transcript on file in this appeal convinces this court that such findings are supported by a preponderance of the evidence and are therefore legally unassailable. As to some of the issues the evidence is overwhelmingly in favor of the findings, and as to each and all of the others there is at least a substantial conflict in the evidence upon which each of them is based. California eases so numerous.as to require no citation and for reasons so thoroughly understood as to require no elucidation are practically unanimous in holding that in such circumstances the findings are conclusive.

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.