Maescher v. Sammann

This is an appeal from a judgment denying probate to an alleged will of Louis J. Maescher, deceased, which judgment was rendered upon a verdict of a jury that said will was executed by Maescher while acting under the undue influence of Mrs. Lottie Logan, one of the beneficiaries thereunder.

[1] As appellants contend that the evidence is insufficient to support the verdict of the jury and that their motion for a nonsuit made at the conclusion of the contestants’ evidence should have been granted, we shall state the facts herein rather fully with emphasis upon testimony supporting the verdict.

Louis J. Maescher married in 1902 and lived with his wife in Los Angeles, until 1912, when he left her, saying he would not return. Mrs. Maescher gave no cause for this action on his part, but, on the contrary, was a de

At various times during the relationship of these people Mr. Maescher was seriously ill and during the last three months of his life he declined very noticeably and no longer attended to business duties. During this period he was almost constantly with Mrs. Logan. Neighbors who saw him daily testified that during the last few weeks of his life he failed both physically and mentally. About a week prior to his death he spent the night with a neighbor and appears to have become hysterical or mentally unbalanced during the night. Mrs. Logan was sent for and took him to her home. Several days later, on Saturday, June 16, 1923, Mrs. Logan went to the home of this neighbor, Mrs. Langworthy, to use her telephone. Mrs. Langworthy and other persons present on this occasion testified that Mrs. Logan was greatly distressed and excited and stated that this was because she had just learned that Mr. Maescher had not made a will;

On June 19, 1923, Mr. Maescher was taken to the office of the attorney by Mr. Sammann and there he signed the will which contained the provisions he had directed upon the previous Saturday, according to the testimony of the attorney. Under its provisions $5,000 was left to the wife of testator with the condition that if she contested the will she was to receive but $5. Twenty thousand dollars was left to Mrs. Logan and the balance of the estate of the value of nearly $150,000 was left to Lois Frances Logan, the adopted child of Mrs. Logan.

The contest over the probate of the will was instituted by the brothers and sisters of deceased and the jury found that the will was executed under the influence of Mrs. Logan. The facts we have set forth herein are outstanding ones in the record, but they by no means include all the matters ■which the jury might well have considered as fortifying their conclusion. The record shows that at the time of Maescher's death Mrs. Logan had succeeded in accumulating a fortune of over $100,000; that he had given her real property, bonds, money, jewelry, and his insurance policies. Their relations were certainly most confidential and she had constant opportunity during the last few weeks of his life when he was weakened mentally and physically to influence his actions. It has repeatedly been held that opportunity and inclination to influence a testator are not in themselves sufficient showing of undue influence, without some participation by the person having such opportunity and inclination in the mMino- of Me will. But we have in the record before

The foregoing evidence was sufficient to entitle the contestants to submit to the jury the issue of undue influence and was a substantial basis for the jury to find in their favor upon that issue.

[2] “ Questions involving motives, and inferences to be deduced from circumstances, are, within reasonable bounds, exclusively within the province of the jury, or the trial court when sitting without a jury, and under the rules regarding the granting of a nonsuit, they must all be resolved, so far as possible, in favor of the contestants.” (Estate of Arnold, 147 Cal. 583 , 589 [ 82 Pac. 252 ].) “In many cases it is utterly impossible to prove the exercise of the infhience directly upon the testamentary act, but this is not necessary.” (Estate of Snowball, 157 Cal. 301 [ 107 Pac. 598 ].)

Of course, there is testimony in the record relied upon by appellants which is in conflict with that above recited. The testimony regarding the circumstances surrounding the making of the will is not so greatly in conflict. Mr. Sammann stated that he came to Mrs. Logan’s home on Saturday after- . noon, June 16th, in response to a telephone message left for him at his home. This is in harmony with the testimony that Mrs. Losan- left word for him to come to her home. He stated that when he arrived Maescher wished to make

[3] Appellants object to the testimony in the record regarding the wife of deceased, Ms relations with her and especially the facts and circumstances which would indicate that she deserved consideration from him and that she had a natural claim upon the bounty of testator. This objection is made because the wife was not one of the contestants. However, that fact does not destroy the relevancy of the evidence offered. The evidence was offered to show that the will was an unjust and unnatural one. [4] While an unjust will does mot of itself raise the presumption of undue influence, the nature of the will may be considered by the jury upon the issue of undue influence as a circumstance. (Estate of Snowball, 157 Cal. 303 [ 107 Pac. 598 ]; Estate of Gallo, 61 Cal. App. 174 [ 214 Pac. 496 ].)

[5] Objection is made to evidence of statements made by testator six months before his death to his wife’s aunt, to the effect that Mrs. Logan was trying to force him to get a divorce from his wife and marry her; that he did not wish to do this; that he was afraid Mrs. Logan would put him out of her house if he did not and similar statements. These statements were admitted for the purpose, and restricted by the court to such purpose, of showing the state of mind of the testator. - For such limited purpose they were admissible. Declarations of a testator which reveal his condition of mind are admissible for that purpose, although not a part of the res gestae, but their effect must be carefully limited to the question of his condition of mind, and they must not be considered as narrations of the exercise or effect of the undue influence'. (In re Calkins, 112 Cal. 301 [ 44 Pac. 577 ]; Estate of Arnold, 147 Cal. 593 [ 82 Pac. 252 ].) In the instant case the jury was repeatedly instructed that the declarations of the testator were admitted only to show his state of mind and not as evidence of the facts recited.

[6] Appellants contend that, although this evidence may-have indicated the mental state of testator six months before Ms death, that mental state is not germane to the issues, and that the incidents narrated were too remote in time to illuminate the state of mind of testator at the time of the

■ [7] As to the objection that the state of mind of the testator was not germane to the issue of undue influence, the matter is thus analyzed in an authoritative text on Evidence: “Where undue influence or fraud is the issue, three uses of the evidence present themselves. The testator’s utterances . . . may be offered either as indirect evidence of the testator’s condition of mind-weakness, susceptibility to importunities, and the like—or as declarations of a state of mind (under the present exception)—assertions of affection or dislike, etc.,—and are thus admissible; his condition of mind, intelligence and strength of purpose, feelings toward this or that person, being all circumstances which bear on the fact of undue influence; the propriety of this use is universally recognized.

“Again, the question whether a will was made under undue influence is, in one respect, a question whether the 1 testamentary intentions and wishes represented in it are the normal ones of the testator, or whether, relatively to his known usual and constant state of mind, they are abnormal. It thus becomes important to learn what was the normal condition of his affections, wishes and testamentary intentions, for the purpose of establishing this standard of normality. As evidence of these affections, intentions, etc.— either by circumstantial inference or under the present exception for declarations of a state of mind—his utterances at various times before or after execution (including expressions of affection or the opposite, previous wills or statements of intention, etc.) may be resorted to. This use of such evidence is also universally accepted.” (1 Greenleaf on Evidence, 16th ed., p. 261 et seq.)

[8] Appellant objects to the admission of the testimony of Mrs. Langworthy to the effect that Mrs. Logan had admitted on Saturday, June 16th, that she knew Maescher’s mind had weakened, but that she was relying upon the fact

[9] Objection is made to certain testimony of the witness Mary Graham. She had been employed in Mrs. Logan’s household six or seven years before the will contest. . She testified that on one occasion when Mr. Maescher was in bed on the sleeping porch Mrs. Logan asked him to give her some fiats which he owned and he said he would not do so. Contestants had set forth in their pleading and attempted to prove a continuous course of conduct on the part of Mrs. Logan and the exercise of a strong influence over Maescher from the time he first met her until his death. Their theory was that Mrs. Logan separated Maescher from his wife and gradually and steadily persuaded him to transfer his property to her until she had acquired a large fortune and then, when he was weakened in mind and body, influenced him to make a will, leaving substantially all the balance of his property to her and her adopted child. The testimony of Mrs. Graham was a link in that alleged chain. If its reception was not justified because of the peculiar theory of the case, nevertheless we think it was pertinent as showing the close and intimate relationship of the parties. Certainly such a request on the part of Mrs. Logan demonstrated such relationship. The nature of the relationship between a testator and one charged with having unduly influenced him in making a testamentary disposition of his property is always a proper subject matter for investigation by the jury.

[10] The testimony of the sister of Mrs. Maescher regarding the latter’s attention to her home duties and her devotion and kindness to her husband cast light upon the naturalness of the testamentary act. It has repeatedly been held that the injustice and unnaturalness of a will are circumstances to be considered in resolving the issue of undue influence. It would be more unnatural to disinherit a

[11] It is contended that the motion to dismiss the action as to Lois Frances Logan, a minor, should have been granted upon the ground that no citation was served upon her guardian in compliance with the requirements of section 1328 of the Code of Civil Procedure.

The citation was issued to Lottie T. Logan, Lottie T. Logan, as guardian of Lois Frances Logan, a minor, and Lois Frances Logan, a minor. Service was made upon Lottie T.. Logan, for herself personally, and she was also served as said guardian. Service was also made upon the minor personally. Lottie T. Logan was the natural guardian of said child, having adopted her. Mrs. Logan had also applied for letters of guardianship to care for the estate of said child, at the date of the issuance of the citation. The objection to the service is made by the appellants because Lottie T. Logan had not qualified as such guardian of the estate of Lois Frances Logan by filing the necessary bond at the time the citation was served upon her. While this fact creates an irregularity in the service, no prejudice resulted to the minor therefrom under the facts of this case. Less than a month after said service Mrs. Logan was appointed guardian ad litem of the minor and thereupon filed an answer for herself and on behalf of her ward as said guardian ad litem.

In Estate of Simmons, 168 Cal. 390 , 395 [ 143 Pac. 697 ], the court says: “It seems entirely clear that, under this statutory scheme, jurisdiction of the subject matter of the contest is vested in the court by the filing of the petition. Mr. Justice Temple in his concurring opinion in San Francisco Protestant Orphan Asylum v. Superior Court, 116 Cal. 443 [ 48 Pac. 379 ], expresses the view that the proceeding is one in rem and that service of a citation might have been omitted from the statutory procedure because not essential to jurisdiction of the res. But if it be thought that service of the citation has any bearing on the jurisdiction, its office can be only that of a summons in a civil action, viz., to give jurisdiction of the persons of those whose rights would be affected by revocation of the probate. A voluntary appearance would dispense with the necessity of service (Abila v. Padilla, 14 Cal. 106 ; Estate of Ricks, 160 Cal. 467 [ 117 Pac. 539 ]). While the issuance of citation within the year is requisite

The other objections urged by appellants are unsubstantial. We find no error in the record warranting a reversal of the judgment, and the same is affirmed.

Nourse, J., and Sturtevant, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 26, 1926.

Seawell, J., and Shenk, J., dissented.