Kramer v. Bodin

When the purser of a coastwise passenger vessel checked off his “berthing sheet” upon arrival at Wilmington, California, April 3, 1933, two passengers, “Mr. and Mrs. Smardon”, did not disembark. Search of their cabin revealed no occupants, but two notes'. One, addressed to the purser, read: “You have two individuals as your guests traveling under a nom de plume of Smardon. The true names are J. R. Bodin and Barbara Muller. ’ ’ The other, addressed “To Whom it May Concern”, was couched in this language: “We are leaving this world knowing fully what we are doing, and for reasons of our own, which will eventually mean eternal love and happiness.” Each note was signed with the two names J. R. Bodin and Barbara Muller. Suspicion of suicide was confirmed as to Bodin when his body was washed ashore on the Orange County coastline a few days later. The woman’s body has never been recovered.

On April 4th, the day after the pair’s disappearance, an employee of the Bank of America in Los Angeles received through the mail an envelope postmarked April 3, 1933, Wilmington, California, and containing the following document: “Bank of America, Trust Dept. 7th & Spring, Los Angeles. March 28, 1933. Attention Mr. L.

When the above document was offered for probate in the Superior Court of Los Angeles County as Barbara Muller’s holographic will, written opposition was filed by two aunts as the heirs at law of said deceased, and a petition in intervention was presented in behalf of one Audrey Louise Bow-din, illegitimate daughter of deceased and her companion, J. R Bodin (otherwise known as Jack Bodin, Sr.), born August 1, 1932. No mention of this illegitimate child is made in the will, she was not produced at the hearing, and so far as the record in this case is concerned it is purely a matter of conjecture whether or not she is alive.

Contest against the admission of the purported will was based upon three grounds, viz.: that Barbara Muller was not of sound and disposing mind at the time the document was executed; that the instrument was not properly executed and was not wholly in decedent’s handwriting; and that it was not the free and voluntary act of decedent but was the result of the undue influence of Jack Bodin, Sr. In behalf of the illegitimate child the additional point was made that the will omitted to provide for her or to mention her at all. Upon trial without jury the court found specifically that the will was duly executed, that it was wholly written, dated and signed by the testatrix, and that she was sane and of sound mind at the time. However, probate was denied upon the ground that the document was procured by the undue influence of Jack Bodin, Sr. Appeal is taken in behalf of the minor legatee and devisee by his mother, proponent of the will.

The testatrix was twenty-one years old at the time of her death. She had been intimately associated for about, three years with her companion at the time of her disappearance, a married man twice her age and who had served a

It may be admitted that due to the relationship and constant association between the pair the opportunity was afforded Bodin to influence his companion in her testamentary act. But intimacy of association is not proof of domination ; and no inference of undue influence in the matter of the execution of a will is to be drawn from the mere existence of a confidential or intimate relationship. (Estate of Morcel, 162 Cal. 188 [ 121 Pac. 733 ].) Nor does opportunity to exert undue influence warrant the inference that the will was not the free act of the testator. (Estate of Knight, 9 Cal. App. (2d) 454 [ 50 Pac. (2d) 475 ].) “In order to set aside a will for undue influence there must be substantial proof of a pressure which overpowered the volition of the testator at the time the will was made. ’ ’ (Estate of Langford, 108 Cal. 608 [ 41 Pac. 701 , 705].) It is significant in the case here under consideration that there was no proof whatsoever as to what may have transpired at the time the will was executed, six days before the double suicide. It is not shown that the testatrix and Bodin were together upon that day or that the matter of the testamentary disposition of property was ever discussed by them. Neither is the situation present here where the person who is alleged to have wrongfully exerted the undue influence profits by the act of the testator. No benefit flowed to Jack Bodin, Sr., from Barbara Muller’s testamentary act. Consequently no burden is cast upon the proponent of her will to show that it was not induced by coercion or fraud. (Estate of Shay, 196 Cal. 355 [ 237 Pac. 1079 ].)

Respondents contend in defense of the judgment that the will was so unnatural as to indicate subversion of decedent ’s testamentary freedom. Unnatural provisions of a will do not of themselves afford ground for setting it aside. (Estate of Martin, 170 Cal. 657 [ 151 Pac. 138 ].) Moreover, it does not appear that the Barbara Muller will was so unnatural in its provisions as to indicate doubt either as to her

Judgment reversed.

Wood, J., and Crail, P. J., concurred.

A petition by respondent 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 16, 1936. Seawell, J., Curtis, J., and Langdon, J., voted for a hearing.