In re Estate of Barr

William G. Barr, an adjudged insane person, died on May 27, 1916, while an inmate of the state hospital for the insane at Agnews, leaving an estate valued at approximately twelve thousand dollars. Mabel W. Barr, his wife, survived him as his only heir. In due time Mrs. Barr offered for probate a document in words and figures as follows:

“Belmont, Sept. 6, 1914.

“I, William G. Barr being of sound mind, and in every way well physically and mentally, do leave all I possess to my wife Mabel W. Barr—hereby revoking former wills if any.

“Wm. G. Bare.”

In her petition Mrs. Barr alleged the usual jurisdictional facts, and that the aforesaid instrument was entirely written, dated, and signed by the hand of said William G. Barr and is his last will and testament.

Thereafter George B. Stiles filed his opposition to the probate of said instrument wherein his interest and his ground of contest are alleged as follows: “that he is the • sole legatee and devisee of said William George Barr, deceased, under the terms and provisions of an holographic will executed by said William George Barr, deceased, on the 5th day of November, 1912; that said will so executed on said fifth day of November, 1912, is the last will and testament of said William George Barr, deceased; that at the time of the execution of the said will dated November 5th, 1912, said William George Barr was of sound and disposing mind, and not acting under menace, fraud, duress or undue influence of any kind, but that said last named will is a valid one, and is, as this contestant alleges entitled to be admitted to probate as the last will and testament of said deceased; that the alleged will and testament bearing date September 6th, 1914, ought not to be admitted to probate as the last will and testament of said William G. Barr for the reasons hereafter set forth.

"1. That said paper writing is not the last will and testament of said decedent in that said William G. Barr was insane, incompetent and of unsound mind at the time of the execution of said paper writing, and was by reason thereof not competent to make a will;

“3. That the said decedent was not at the time of the alleged execution of said paper writing, dated September 6th, 1914, competent to make and publish a will, or to make any testamentary disposition whatever of his property.’’

Mabel W. Barr, proponent, made answer by a general denial. The cause on the issues thus made was tried by the court sitting without a jury. The trial court found that on September 6, 1914, and at the time of the purported execution of aforesaid written instrument that Mr. Barr was insane, incompetent, of unsound mind, and not competent' to make a will. From its findings the trial court concluded that aforesaid written instrument was not the last will and testament of William G-. Barr, sustained the opposition and denied probate. Judgment was entered accordingly. Proponent moved for a new trial upon the ground of the insufficiency of the evidence to justify the decision, and that the decision was against law. Motion for new trial was denied and proponent appeals from the judgment.

Substantially the facts are these: The time and place of decedent’s birth are unknown. The first knowledge of him, he was an inmate of a San Francisco foundling asylum, and of the age of two years. Nothing is known of the characteristics, environment, or mode of life of his immediate progenitors or family. He was an abandoned child. When he was eight years of age he was leg-ally adopted by a resident of San Francisco. He had resided with his adopter since he was two years old. He received schooling at a grammar and high school; He obtained employment in the office of an insurance company and accumulated sufficient money to enable him to attend a preparatory school in Massachusetts. He entered Harvard University, where he obtained his academic degree. While at Harvard he devoted about one year to the study of law. Returning to San Francisco from Harvard he entered Hastings College of the Law, from which he received his professional degree. He was admitted

During the earlier period of his life decedent held a responsible position with a life insurance company. He is described as a friendly, genial, pleasant, sociable man; interested in general current topics. He did not use vulgar, obscene, and scurrilous language, and his method of expressing himself was always that of a gentleman. He took much pleasure in innocent social enjoyment; he liked cards, dancing, dinner, and house parties. He was very bright; not taciturn. He was not suspicious of others, nor subject to delusions or eccentricities of any kind.

In January, 1907, decedent became a lodger in the home of Mr. George "Wilbur in San Francisco, where he met Mabel W. Wilbur, whom he subsequently married. Decedent was then in his thirty-third year. A warm friendship between the deceased and the members of the Wilbur household was soon established. He lived at the Wilbur home until March, 1910, when he went to Seattle. A month later Mabel Wilbur joined decedent at Portland, where they were married. They then left Portland and went to Seattle, where they resided for about four months. At the end of this period the wife returned alone to the home of her parents in San Francisco and decedent went alone to Chicago, where he remained for about two months. Later, in October, 1910, decedent and his wife met in Los Angeles. They remained in Los Angeles one week and then removed to San Diego, where they remained about four months. While they resided in San Diego Mrs. Barr left San Diego and returned to San Francisco; later she joined her husband at Long Beach, and remained there for one or two weeks, until in June, 1911, they finally separated. The total period of time which elapsed between their marriage and separation was fourteen months; the total time of actual matrimonial cohabitation was eight months; and during the entire period between the marriage and the separation decedent never entered the home of his wife’s parents—never, in fact, entered San Francisco. After the marriage the decedent indulged in the use of intoxicating liquor nearly every day;

With the commencement of the action for divorce all correspondence between the parties ceased. Proponent did • not communicate with the deceased nor did he with her. It was while this state of total estrangement was maintained that deceased wrote the document which gives George B. Stiles his standing as contestant. This document is dated November 5, 1912. At the time of his marriage decedent was possessed of a considerable sum of money, wholly acquired independently of any assistance from his wife.

In December, 1912, decedent was arrested in Oregon as an insane person. He was judicially determined to be an insane person with fixed delusions, and as such insane person was committed to the state insane asylum at Salem, Oregon. Thereafter, on January 3, 1913, his wife was informed that her husband was mentally deranged and that he was an inmate of the Salem insane asylum. A short time after receiving this information she left San Francisco for Salem, accompanied by a male nurse. On reaching Salem, such proceedings were had that the authorities at the insane asylum delivered decedent to her and the male nurse to be by them brought back to California. As she was about to leave Salem she telegraphed to San Francisco as follows: “Bill [referring to decedent] fine; no trouble at all; leave for home tonight.” It was at this time that she asked him if he wanted to go home; his-reply was that he wanted to get out of that place (.Salem). She observed that he was changed in the respect that he was more quiet than he was formerly. He was paler and thinner. “He was pale, of course, and well, I won’t say melancholy, but he was not

After the appointment of a guardian, decedent was removed from Belmont to Thompson’s sanitarium for mental cases in San Francisco, en route to Clark’s sanitarium for mental cases at Stockton. He remained only one night at Thompson’s on this occasion. When he was being taken from Belmont to Thompson’s, he was so taken in a taxicab by his guardian, accompanied by a deputy sheriff. While on the way to Thompson’s he refused to speak either to his guardian or to the deputy sheriff, except to exclaim: “For God’s sake, keep those people away from me”; and he would look through the window in the back of the taxicab and say, “Ain’t they awful?” and want to get out of the cab and chase the people away. The people that he referred to were imaginary; there were no people there. He remained at Thompson’s that night, and upon the following day was taken to Clark’s sanitarium by way of the ferry to Oakland, and by train from Oakland to Stockton. He was so taken by his guardian and the deputy sheriff. On arrival at the ferry decedent declared that people were still following him, and requested his guardian to prevent them from going aboard the ferry-boat; and to humor him the guardian went to a policeman near by, and after a few words with him

During this time he was not allowed to use any utensils which might be the means of an offensive attack by him; he was allowed to use no knife; the utensils from which he ate were made of tin or agateware; when visitors would come to see him an attendant would remain close by his room; and upon occasions his food would be brought to him by a male .attendant rather than by a female attendant. During this same period of time decedent frequently and in a loud tone of voice insisted on engaging in a prize-fight with some person or persons connected with the sanitarium; he stated that his purpose in having such a prize-fight was to establish his right to be released from the restraint of the sanitarium. During this period he suffered delusions of persecution and pursuit; and he entertained the belief that by taking a ride in an automobile he could escape from this persecution and pursuit. He suffered from further delusions; for example, he believed that whenever he had occasion to visit the toilet or the bathroom, the women in the house would congregate about the door and listen to what went on inside; that thoughts were transmitted from distant rooms through the intervening walls into his brain; that electric devices were established in the house for the purpose of causing him seminal emissions, and also for the further purpose of recording his thoughts and prying into his private life; and there was in the house, in the adjoining room to his, a crazy woman who operated an electric device which he described as an “electric blazer,” for the purpose of producing a seminal emission by him; that he was caused great annoyance by an instrument which he stated to be a reverberator, but without describing the characteristics of such instrument; he further believed that his guardian was robbing him of his estate, permitting embezzlement and misappropriation of its funds, and violating the postal laws of the United States by suppressing his mail. He further entertained the belief that if he could procure a woman’s rubber bathing cap he could use it as an insulator to prevent the strong currents which were being played upon his brain; he entertained the belief that the sanitarium was

While at Thompson’s Mrs. Barr sought the aid of a member of the bar to release decedent from the restraint that he was under and restore him to capacity; the decedent continually complained of this restraint and was anxious to be freed from it and restored to capacity; the member of the bar in May, 1914, visited decedent at Thompson’s and had quite an interview with him; and the result of this interview was that no steps were then, or ever thereafter, taken to procure the release and restoration so much desired by the decedent.

About the end of June, 1914, decedent was removed to the same sanitarium at Belmont of which he had formerly been an inmate. While here on this occasion no change occurred in his mental condition—it remained the same as it had been at Thompson’s; his delusions persisted; his tendency to violence continued to be exhibited in his attacks upon others. He attacked the physician, the superintendent and the engineer of the sanitarium.

It was while he was at Belmont on this second occasion that he wrote the paper which is here "propounded as his last will, but the validity of which is disputed. He had no expectation of a speedy death; on the contrary, he looked

"The Court: Q. What are your reasons for saying that at the time your husband wrote this will with his own hand in September, 1914, he was of sound and disposing mind?

“A. I really believe it.

“The Court: Q. Why should you believe it? Did you have conversation with him?

“A. I had long conversations with him, he was perfectly rational.

“The Court: Yet he had been ill for some time?

“A. Yes.

‘‘Q. Did he have much to say at the time he executed that will?

“A. Yes, he had quite a lot to say about it.

“The Court: Was anything said about the nature and value of his property?

“A. No. Tie told me he wanted to fix his property, and I told him he would have to hurry and get well so he could put his affairs in order, and he said he could do that now, and he took a piece of paper out of his pocket and wrote this will and handed it to me, and asked me to keep it and I asked him if it was all right, and he said yes.

“Q. Was anyone present besides yourself ?

“A. No.

“Q'. Did he mention the banks at all during the conversation ?

“A. No, but he knew how much he had.

“Q. How do you know? Did he speak of it?

“A. Yes.

“Q. On that day?

“A. Nov He “often mentione'd how much money he had. He knew everything he had. He showed intelligence about his affairs.

| “Counsel for Contestant: Mrs. Barr, you said at the time that this paper was written, Mr. Barr was perfectly sane. For how long a period of time before and after the writing of this paper was Mr. Barr perfectly sane?

“A. In my opinion every time I saw him up to the very week of his death he had intelligence enough to know me, and knew who I was, and knew about his property.

“The Court: You considered him a sane man at the time he made the will?

“A. I did.

“Q. What was his condition of mind in that respect? How long was he in that condition of mind before he made the will and after, in your opinion?

“A. In my opinion, as long as he was sick he was always capable of making a will.

“Q. For how long a period of time before he made this paper was he capable of managing his own property ?

“A. He was always capable of managing his own property.

“Counsel for Contestant: Q. You say you were alone at the time he wrote this paper?

“Al Yes.

“Q. You and he were sitting in the garden?

“A. Yes.

“Q. How long had you been there on this visit at the time when this occurred ?

“A. Probably an hour or so.

“Q. You had been engaged in general conversation?

“Q. And then this matter came up?

“Q. When that paper was written, what did he do with it?

“A. He handed it to me and told me to keep it.

“Q. Did you do so?

“A. I did. I asked him if it was any good. He said, of course it was good, any judge would recognize a will like that.

“Q. Now, at that time, isn’t this what occurred (reading from transcript of testimony on former trial): ‘I was sitting in the garden with him, and he was complaining about so much money being wasted in sanitariums, when he wanted me to be provided for, looked out for, and I said if he wanted me to be looked out for, he must hurry up and get well and put his business affairs in order and he said, “I can do that now,” and he took this paper out of his pocket and wrote the will.’ Isn’t that what happened?

“Q. Did you disclose to any person the fact that he had made this paper?

“Q. To whom?

“A. Mr. Tevlin.

“Q. At the time when this paper was written, did you request any person to be present ?

“A. I did not know he was going to make a will, why should I request a person to be present ?

‘‘Q. So the making of this will was an unexpected thing as far as you were concerned?

“Q. There was nothing that led up to it?

‘‘A. No, it was just the conversation that we had as I have stated.

“Q. On that day that was the first suggestion that was made, about making any will?

“A. Yes.”

Decedent remained at Belmont until the first week in April, 1915, when he was removed to the detention hospital for mental oases at San Francisco, for the purpose of having it determined whether he should be transferred to another private sanitarium for mental cases or committed to one of the state insane asylums. He was removed from Belmont to San Francisco by his guardian and the same deputy sheriff already mentioned. On the way he kept repeating the same thing as on previous trips, complaining about the people who were bothering Mm, saying it was awful, rubbing his hands and biting his finger-nails. He was removed in a taxicab, he and the deputy sheriff sitting in the rear seat, while the guardian sat in front with the chauffeur. While on the way he struck his guardian from behind; the guardian gave him no cause or provocation for the blow. On arrival at the detention hospital his mental condition was not any better than it was when he originally became an inmate of the Greer sanitarium after his attempt at suicide from the Sausalito boat. His delusions were there ¡and very much fixed; he still had the same delusions that dictaphones had been installed. He had the idea that through some sort of a machine they were able to project thoughts by wireless and control his mind, and tMs was much more firmly fixed than on the prior occasion at Greer’s sanitarium; and his mental condition was worse than that exhibited when he was at Greer’s. After some deliberation and the suggestion of friends, he was removed to a samtarium for mental 'cases at Livermore, California, in April, 1915. He was taken there by his guardian and the deputy sheriff already mentioned. On this trip also he complained about the people who were bothering him, said that it was awful, would rub his hands and bite Ms finger-nails. At this time his condition was no better than it had previously "been.

Decedent remained at the Livermore sanitarium until the beginning of March, 1916, when he was brought back again to the San Francisco detention hospital. TMs removal was effected by the guardian and the same deputy sheriff and the conduct of decedent during this removal was similar to

He remained at the hospital at Agnews until his death on May 27, 1916. About six weeks before his death, on receiving word that he was in need of clothing, the guardian went to Agnews to supply him with an outfit; and for this purpose procured permission for him to go in charge of an attendant to a near-by town. This town was reached about lunch-time, and the party went to a restaurant where luncheon was served to all three—the- guardian, the attendant, and decedent. The others ate their luncheon, but decedent left his untouched. After luncheon, the party went toward the clothing store, but, on the way, when passing an ice-cream stand, decedent stated that he wanted a glass of milk; the guardian acceded to this, and had the attendant break an egg into the milk; and thereupon the decedent partook of four glasses of this compound, one after the other. On leaving the ice-cream stand the party passed a fruit-stand, and there, without any consultation with the proprietor, decedent helped himself to two oranges, went to the curbstone and proceeded to eat them; in the meantime the guardian settled for the oranges. Finally, the party reached the clothing store; here decedent stated that he did not want any clothing, and that the clothing he had was good enough; and the guardian and attendant had hard -work to persuade him to take a new suit of clothes. He was finally prevailed upon to be fitted, and was then sent back to the hospital.

It should be further stated as a fact bearing upon his mental capacity that from the time of his arrest as an insane person in Oregon until his death in Agnews insane asylum no business draft of any sort was made upon his mentality; he made no loans; he made no mortgages; he had no dealings in real estate; he engaged in no enterprises of any character; and from the first to the last of this period he never increased his property or estate to the extent of a single dollar by any act of his own.

'Counsel for appellant concedes that findings based upon conflicting evidence' cannot be reviewed upon appeal, and that the evidence shows that William G. Barr was insane. The claim is made, however, that the evidence is insufficient to support the judgment on the ground of decedent’s mental incompetency to make a will. It is claimed “that the contestant and respondent has failed to sustain the burden of proof, and that there is no evidence to support the finding in his favor.”

It is admitted that decedent, from December 12, 1912, to his death in 1916, was suffering from a form of insanity characterized by systematized delusions; none of them, it is claimed, was operative in the alleged testamentary act. [1] In this connection appellant says in her brief: “It devolved' upon the contestant to prove the incompetency of the testator; it devolved upon him to prove incompetency at the very moment of the execution of the will; it devolved upon him to prove that the will upon its face was not a rational act; that it was not made during a lucid interval; and that the delusion of the testator controlled his volition in

Appellant, while admitting that decedent was insane, insists that the purported will was written in a lucid interval. Much of the evidence, testimonial and documentary, showed the condition of Mr. Barr’s mind before and after writing the document in dispute. Proponent and her sister both testified that decedent was sane when he performed the alleged testamentary act. Friends and hospital attendants testified that while at times decedent suffered from delusions, there were intervals when he appeared and acted rational. Two alienists, on behalf of contestant, gave it as their opinion that decedent was an incurable paranoiac. [4] Without attempting to analyze the mass of evidence presented upon this subject, suffice to say that it but presents the common situation of a conflict of evidence which was to be resolved by the trial court. (Estate of Russell, 189 Cal. 759 , 768 [ 210 Pac. 249 ].)

[5] Much evidence was admitted on both sides to show the condition of Mr. Barr’s mind before and after the date of his testamentary act. Such evidence was relevant and important for its bearing upon the condition of his mind when the will was executed. (Estate of Wilson, 117 Cal. 262 , 276 [ 49 Pac. 172 , 711]; Estate of Purcell, 164 Cal. 300 [ 128 Pac. 932 ].) This evidence was entitled to such weight and consideration as the trial court thought it deserved. (Dunphy v. Dunphy, 161 Cal. 380 , 385 [Ann. Cas. 1913B, 1230, 38 L. R. A. (N. S.) 818 , 119 Pac. 512 ].) It tended on the part of the contestant to show that Mr. Barr was afflicted with a gradually increasing unsoundness of mind, always manifest and ever present, affecting his mental capacity before and after the date when he made the questioned will. Other evidence, mostly that in behalf of proponent, tended to show he was suffering from a form of insanity characterized by systematized delusions with lucid intervals in between. Appellant contends that the evidence fails to show that the testamentary act was not performed in a lucid interval. But from this entire evidence the trial court could have concluded either that Mr. Barr had no testamentary capacity during the period from December 12, 1912 (the date of his commitment for insanity in Oregon), to his death in 1916, or that the will was not executed during a lucid interval of his mind. [6] In this condition of the case upon the testimony the decision of the trial court cannot be disturbed upon the ground that it was contrary to the evidence. (Estate of Jones, 166 Cal. 108 , 110 [ 135 Pac. 288 ]; Estate of Martin, 170 Cal. 657 , 663, [ 151 Pac. 138 ]; Estate of Russell, 189 Cal. 759 , 768 [ 210 Pac. 249 ].)

The judgment is affirmed.

Knight, J., and Tyler, P. J., concurred.