Dodge v. Bolton

Certain of the heirs of Clara Northway Burns, deceased, contested her will after probate, and they appeal from a judgment against them following the granting of proponents’ motion for nonsuit.

By her will, dated September 13, 1934, Clara Northway Burns sought to dispose of an estate valued at approximately a half million dollars. Under the terms of her will, decedent bequeathed the sum of $7,500 in $1500 bequests to each of five friends. With the exception of a diamond ring and pin given to second cousins, her jewelry and other personal ef

‘ ‘ If any of my property be undisposed of by the foregoing will by reason of any construction of the will, or because any provision thereof is contrary to law, or through any legacy or trust provision lapsing, or from any other cause, then I devise and bequeath such otherwise undisposed of property to Edwin A. Meserve.”

By the terms of the will, Edwin A. Meserve was appointed executor without bond, with the added provision that in the event of his death, refusal to act, or resignation, his son, Shirley E. Meserve, should be the sole executor, without bond.

In Estate of Lances, 216 Cal. 397 , 400 [ 14 Pac. (2d) 768 ], so often referred to with reference to the power of the court to grant a nonsuit, we find the following language: “A non-suit or a directed verdict may be granted only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.” (Citing cases.) The expression, ‘1 disregarding conflicting evidence”, obvi

The record discloses the following:

Petitioners in this will contest were first cousins of the decedent. With the exception of petitioner Lillie L. Dodge, there had been no communication between petitioners and the decedent over a long period of years. In the case of petitioner Lillie L. Dodge there were admitted in evidence two letters addressed by the decedent to Lillie L. Dodge under date of April 6, 1932, and March 16, 1933, both of which bore the salutation, “Dear Lillie,” the first being signed, “Lovingly, Clara,” while the second concluded with the words, “Love, Clara.” Defendant and respondent Edwin A. Meserve is and for many years had been a licensed and practicing attorney in Los Angeles; he first met the decedent, Clara Burns, about thirty or forty years ago, at which time she was the wife of John Johnston; following their first meeting they became good friends, and he acted as her attorney until the time of her death, at which time she was of the age of seventy years. It also appears that Mr. Meserve acted as Mr. Johnston’s attorney and upon his death probated his will. Some time following Johnston’s death, decedent married James P. Burns, who died during January, 1928, and Mr. Meserve and his associates also acted as attorneys for the decedent in probating Mr. Burns’ will. It was testified by a physician that he treated decedent professionally from August to October, 1927, when she suffered from an affliction ‘commonly known as shingles, a disease which primarily involves the nerves just outside of their origin in the spinal cord; that while he was treating decedent in 1927 she suffered from a severe physical illness and “most of the time she was in a mentally confused condition, didn't know where she was”. The evidence then discloses that some months after this illness, and about one month after the death of her husband, Mr. Burns, and during the course of the probate proceedings involving the latter’s will, Mr. Meserve drew decedent’s will, dated February 10, 1928, in which the clause making Mr. Meserve. residuary legatee was originally incorporated. The decedent made four subsequent wills, respec

tively in 1930, 1932, 1933, and the final will, now before us, on September 13, 1934. She also executed a codicil to her will during March, 1934. Each of said wills brought forward the clause of the 1928 will making Mr. Meserve residuary legatee. With reference to said clause, the only evidence is that elicited from Mr. Meserve under section 2055 of the Code of Civil Procedure, and this disclosed that Mr. Meserve advised the decedent that “if and when that will was probated it should be determined that more than the statutory permitted value was going to charity, that on a distribution her heirs could contest that disposition. I explained to her the theory of precatory trusts, told her that she ought to select some person in whom she had—that she knew to whom she would explain everything that she wanted, but must be very careful not to exact from that party any promise that they would do anything or that they would carry out her wishes, leaving it to the conscience alone of that party to do with that property as he or she saw fit. I also stated to her that if there were such a provision in the will that then in all probability no one would contest the proceedings for distribution claiming there was a disposition to charity over and above that allowed by law for the reason that if they contested it and contested it successfully, it would pass to that party and not to the contestant. I had drawn the will with a complete line left blank, and I said, ‘Take this will and think it all out and then when you have selected the party to whom you want that to go write that name in with your own handwriting. ’ She later brought that will in with my name written in her own handwriting on the one line that was left blank for that purpose ... I had suggested to her two different names, Mr. E. S. Pauly, vice president of the First National Bank, and Mr. Jay Spence, the then vice president of the bank on Sixth and Spring Streets, as being the parties who were very intimate business friends of hers as well as socially. I had told her that I didn’t want her to select my own name at that time, calling her attention to the fact that she had previously stated that she wanted to leave me the larger part of her estate, and I told her that that could not be done; that I would not permit it. Then with that explanation she executed the will of 1928.”

With reference to the execution of the last-named will, the only evidence in the record indicates that decedent came to the office of Mr. Meserve, who was absent therefrom, whereupon the decedent consulted the above-mentioned Mr. Shirley E. Meserve, and the will was thereupon executed, with Mr. Shirley E. Meserve and the legal secretary, Miss A. Phillips, acting as witnesses thereto.

With reference to the relationship existing between the decedent and the defendant and respondent Ivan A. Bolton, it appears that the latter was introduced to the decedent by a friend in 1932, and the following year Mr. Bolton went to live at the home of decedent. With reference to decedent’s attitude toward Mr. Bolton, Mr. Edwin A. Meserve testified, “She told me that Mr. Bolton was a lawyer, had been admitted to practice law; that he was down and out, and she thought that if she helped him get an office and start him as a lawyer that he would put his feet on the ground and probably succeed. She told me that he seemed never to have quite gotten his feet on the ground after he was gassed in the war and that she thought that if she helped him that

There was also testimony in the record that before Bolton came to live at the home of decedent, the latter had many friends visiting her and entertained frequently, but that Bolton objected to her friends’ coming, and that thereafter such visits became more infrequent. The record also contains testimony to the effect that during November, 1934, an argument ensued between Bolton and the decedent pertaining to a Christmas celebration to which the decedent had been in the habit of inviting many of her friends, and that Bolton said to the decedent, “No, we won’t have that party. I am not going to have all those old hens around me at Christmas. If we are going to have a party, I am going to give out the invitations.” It was also in evidence that Bolton had received from the decedent some $11,000 during the two-year period from January, 1933, to December, 1934. There was also testimony to the effect that Bolton frequently complained to the decedent that he was crippled by arthritis and could hardly walk, and he would walk in a crippled manner when in the presence of decedent, but would walk all right when he was out of her presence.

Further testimony was to the effect that during her lifetime and particularly about October, 1934, decedent complained of the treatment accorded her by Bolton; that upon an occasion when Mrs. Burns expressed a desire to go down and talk with Attorney Meserve about her will, Mr. Bolton suggested that someone else could do it, but that the decedent insisted she wanted Mr. Meserve. Another witness testified to statements on the part of Mr. Bolton in which he expressed a desire to obtain the house in which decedent was living, and that he was continually talking about decedent dying. A nurse who attended the decedent during her last illness,

With this statement of the evidence as contained in the record, we proceed to a discussion of appellants’ claim that the evidence they produced established a prima facie case of undue influence in the making of decedent’s will, by reason of which the trial court fell into error in granting a non-suit thereon.

Reviewing the question of the sufficiency of the evidence to sustain the judgment of nonsuit in the light of settled and established legal principles, we are confronted first of all with the fact that every person of sound mind over the age of eighteen years may dispose of his separate property by will. (Prob. Code, sec. 20.) As was said in an especially well-considered opinion prepared by Mr. Presiding Justice Nourse of Division Two of the First Appellate District in the Matter of the Estate of Nolan, 25 Cal. App. (2d) 738 [ 78 Pac. (2d) 456 ], “the property of the testator is his to dispose of as he wills, and he is not called upon to consult or satisfy the wishes or views of juries -or courts (Estate of Spencer, 96 Cal. 448 , 452 [ 31 Pac. 453 ]; Estate of Perkins, 195 Cal. 699 , 709 [ 235 Pac. 45 ]); and ‘ whether in the minds of others a will is just or unjust is a matter of opinion, and to permit a jury to determine the question without that substantial evidence which the law requires would be to permit a jury to make the disposition irrespective of the desires of a testator. ’ (Estate of Donovan, 114 Cal. App. 228 , 233 [ 299 Pac. 816 ].) ” .

Appellants’ first claim, that the will was executed under the undue influence of respondent Attorney Edwin A. Me-serve, is without any merit whatever. The authorities in this state are numerous to the effect that however unnatural a will may appear to be, and however much at variance with expressions by the testator as to his intentions with regard to relatives or the natural objects of his bounty, it

This is the settled general rule. There is a well-established exception to this rule, upon which the contestants rely here, to the effect that where one who unduly profits by the will as a beneficiary thereunder sustains a confidential relation to the testator, and has actually participated in procuring the execution of the will, the burden is on him to show that the will was not induced by coercion or fraud. As suggested in Estate of Higgins, 156 Cal. 257 , 261 [ 104 Pac. 6 ], a “presumption of undue influence” arises from proof of the existence of a confidential relation between the testator and such a beneficiary, “coupled with activity on the part of the latter in the preparation of the will’’. However, the confidential relation alone is not sufficient. There must be activity on the part of the beneficiary in the matter of the preparation of the will. See, in this connection, Estate of Ricks, 160 Cal. 450 [ 117 Pac. 532 ]; Estate of Lavinburg, 161 Cal. 536 , 543 [ 119 Pac. 915 ]; Estate of Higgins, supra; Estate of McDevitt, 95 Cal. 17 , 33 [ 30 Pac. 101 ] ; Coghill v. Kennedy, 119 Ala. 641 [ 24 So. 459 ], The whole claim of contestants in this connection is that there was such activity on the part of respondents Edwin A. Meserve and Ivan A. Bolton, but there is no evidence in the record to support this contention. As to respondent Edwin A. Meserve, there is not even a scintilla of such evidence. In fact, the testimony points clearly to the absence of any such activity on Mr. Meserve’s part. True, some of this evidence was elicited under section 2055 of the Code of Civil Procedure, and contestants were entitled to rely only upon that portion of such evidence as was favorable to their claim and were not bound by any adverse testimony given by witnesses called under that section. But nevertheless, such testimony remained in the record and was uncontradicted.

We may assume for the purposes of this decision that there was a sufficient prima facie showing to satisfy the law

In asserting that respondent Edwin A. Meserve profited unduly under the terms of the will, appellants lay particular stress upon their claim that the charitable devises and bequests violated the provisions of sections 41 and 43 of the Probate Code, and that therefore the estate in excess of that which may legally be given to charitable institutions would go to respondent Meserve. Without indulging in mathematical computations, it is sufficient to say that the statute against charitable devises and bequests can be violated only when the devise or bequest takes effect, and at that time is shown to be illegal for excess (Estate of Camp

Conceding as appellants do in their brief, that the sole question involved on this appeal is whether the evidence produced by them established a prima facie ease of undue influence in the making of decedent’s will, it follows from what we have said that a verdict in favor of contestants could not have been held to have sufficient support in the evidence, and that the trial court did not err in granting the motion for a nonsuit.

Judgment affirmed.

York, P. J., and Doran, 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 August 1, 1938.