Stroughton v. McGowan

This is an appeal by the proponents of the will of Lillie A. Russell from a judgment annulling the probate of said will and revoking letters testamentary issued thereon, which judgment was entered pursuant to the verdict of a jury declaring “that the will of October 16, 1944 is not the will of Lillie A. Russell.”

Contestants attacked the will on the grounds of undue influence, fraud and incompetency. However, after all of the evidence adduced by the parties had been received, contestants abandoned the first two grounds of contest, and the matter was submitted to the jury on the sole issue of the claimed incompetency of the testatrix.

Motions appropriately made for a nonsuit and directed verdict were denied. A motion for judgment notwithstanding the verdict was interposed, but so far as the record discloses was never ruled upon. A motion for a new trial was denied.

Lillie A. Russell, the testatrix, died at Glendale, in Los Angeles County, on October 23, 1944, and at the time of her demise was 82 years of age. She came to California about the year 1895 with her husband, who predeceased her by some four years. For a number of years they were engaged in the wholesale millinery business in Los Angeles, the testatrix looking after the financial end of the business and her husband giving his attention to the manufacturing end. The value of the estate here involved is approximately $63,779 and the beneficiaries under the will include a nephew, grandnephews, nieces and grandnieces, while the contestants, three in number, are alleged to be the niece, grandniece and nephew of the testatrix.

The circumstances leading up to the execution of the will as reflected by the record are that on October 10, 1944, decedent telephoned an officer of the Glendale Branch of the Security-First National Bank requesting him to call, at her home, which he did. At this meeting the decedent inquired as to whether the bank would be willing to act as executor of her will. After answering the inquiry in the affirmative, the bank official engaged in some conversation with decedent concerning her relatives and heirs, and advised her to consult an attorney. Decedent then requested the bank officer to ask attorney Clency H. Hasbrouck to call upon her. The officer of the bank had known the decedent some four years, during which interim he had talked with her some three or four times in regard to her affairs. As a result of the telephone call from the bank official, Attorney Hasbrouck visited

Attorney Hasbrouck testified that prior to the execution of the will he read it to the testatrix paragraph by paragraph, and specifically asked her about each bequest or devise. That testatrix expressed her approval by either nodding her head or saying, “Yes,” or “That’s all right.” That during the reading of the document the testatrix interrupted once to ask what further provisions could be made for her niece Mrs. Sarah E. Whipple in the event the latter should be required to take care of the testatrix over a prolonged period of illness. When informed by the attorney that should such an event occur Mrs. Whipple might file a claim against the estate for her services, the decedent announced her readiness to execute the will.

Attorney Hasbrouck also testified that while signing the will the testatrix was propped up in bed and the document was placed before her on a magazine and file cover. When first signing her name her hand slipped and the signature had an extra “L” in it. When the attorney commented upon this, the testatrix again affixed her signature. In his testimony concerning what occurred at the time the will was executed, Attorney Hasbrouck was corroborated by his secretary, Miss Burland. The attorney testified that while the testatrix was in bed and ill when she executed her will he was “sure she understood what she was talking about.”

The admission to probate of the will of October 16, 1944, here in question, “established prima facie for all the purposes of the contest, that it was duly executed in the manner required by law by a testator who was competent,

As a first ground for reversal appellants earnestly urge that there was not substantial evidence to justify the verdict of the jury or to support the judgment based thereon. When a verdict rendered in a will contest is attacked as being unsupported by the evidence, the province of a reviewing court is the same as in any other civil case. In such a situation the power of an appellate tribunal begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. And when two or more inferences can reasonably be deduced from the facts, a reviewing court is not authorized to substitute its deductions for those of the triers of fact.

We shall not attempt to analyze the evidence of witnesses who testified in behalf of the appellants. It was the province of the jury to weigh and consider that evidence. Our duty begins and ends with a determination of whether there is adequate evidence to support the findings of the jury and the judgment of the trial court. Should we conclude there is sufficient evidence to serve that purpose, it would be an idle task to review the aforesaid conflicting testimony and this we say because, while we are authorized to consider the evidence, we are not authorized to weigh it. That was the function of the jury. And they were warranted in believing as true all the evidence in support of contestants’ claims and in discrediting as untrue all the evidence in behalf of the proponents which was in any way contradictory or otherwise impeached. It is well established in our law that under our Constitution, appellate courts are not authorized to review evidence, except where, on its face, it may justly be held that it is insufficient to support the ultimate issue involved, in which case it is not a review of a question of fact but purely one of law.

John H. Judd, an investment broker, testified he had business relations with the decedent from about 1940 until about September of 1944, approximately a month prior to her death. During this period of some four years he had visited with her on an average of about once a month, had discussed many business matters with her including income tax returns, stock investments, drawing of a will, family matters, and problems of her family. He testified that he observed that on the occasion of his visit with the testatrix in September of 1944, she was not as well as she had been previously; that she had a bad color and did not talk as coherently as she had prior thereto. In comparing his visits through the years with his visit of August, 1944, the witness testified that testatrix did not act in any manner the same as she had on prior occasions and on the visit of August, 1944, the decedent discussed with him how her marketing was to be done, family

Mrs. Gladys Evelyn Woodard, a trained nurse with 15 years of experience, including a period of years when she was nurse in an asylum for demented people at Columbus, Michigan, testified that she became the decedent’s nurse about 8:30 o’clock on the morning of October 17, 1944, the day following the execution of the will. She testified that on arriving at the home of the decedent she found her in a stupor, “in a very deplorable condition,” that she had attempted to arouse the patient but was unsuccessful, that she had tapped her on the side of her cheek to which there was no response or even a reflex of the eyelids. That “then I went about to clean the patient up and to change her linens, before I even gave any of the medicine or anything, because she was in such a bad condition, in a bad way.” The nurse further testified that the decedent was unable to swallow and that it was necessary to take her temperature under the armpit. In answer to the question propounded by the court, “What did you observe as to her general condition on that morning?” (referring to October 17, 1944), the witness stated that the decedent was in a weakened condition physically and “mentally she was in a stupor.” This witness testified that during the entire time she was in attendance upon the decedent, which was for a period of approximately one week, and up to the time of the death of the testatrix, she heard the latter speak but once and at that time in order to hear her she was compelled to bend over her. On October 19, after the nurse had been there some two days, the testatrix spoke to her, saying, “Who are you; what are you doing here?” The witness further testified this was the only time decedent rallied at all. That on Tuesday, October 17, she did not speak, and on Wednesday the 18th, was in a stupor all day. The witness testified that during the entire

Mrs. Grace Woods, who was a neighbor of the decedent for 14 years, living next door, testified that she saw her once or twice a week, that on October 16, 1944, about 8 o’clock in the morning, approximately two hours prior to the execution of the will, the witness visited in the sick room of the decedent, tried to talk with her but could not get any answer; that her eyes were closed and that she did not respond to questions asked.

Mrs. Helen McBride, who lived across the street from the decedent for about seven years and who for a period of some four years took the testatrix to market about twice a week, testified that on her return from Arrowhead on the evening of October 15, 1944, the night before the execution of the will, she was called to the decedent’s house because of the latter’s illness; that she assisted in calling a physician and remained with the decedent all of the time that the doctor was there; that she was there every night thereafter up to the time of the death of the testatrix; that during the last week of her life the testatrix was more or less in a coma and could talk only in a whisper. That her eyes were closed most of the time. When this witness was asked, “was she (testatrix) of sound mind on October 15, 1944, in your opinion?”, she answered, “Well, I would sort of hesitate to say. Yes.” When asked, “Was she of sound mind on October 16, in your opinion, that is Monday night?” (the day upon which the will was executed) the witness answered, “No, I would say definitely not Monday night.” In giving her reasons for her expressed opinion the witness testified that the decedent “did not talk; her mouth was as thogh her tongue was thick, she could not articulate properly, as though she had an affliction of her speech, in other words, and her mind seemed to be as slow as her speech was; she did not

Another witness called by the contestants was Elsie M. Wilson, the wife of the nephew of the decedent who, together with her husband, visited the home of the testatrix on the 22d of October, the day before Mrs. Russell’s death. With reference to the latter’s condition on that day, this witness testified, “they said that she had been in a coma practically the whole week.”

Mr. George E. Wilson, husband of the last-named witness, testified with reference to the decedent’s condition on October 22, by saying, “Well at first glance I would not have recognized her. She did not have her glasses on, she neither had any set of teeth in. The last few years she has always had her glasses on except when her eyes ran and she wiped them. She was in no condition at all to say anything whatsoever; she was practically dead.”

As heretofore indicated, there was testimony, including that of the attending physician of the testatrix, which was in direct conflict with the foregoing, but for the reasons hereinbefore stated we shall not narrate nor analyze the same.

An unbroken line of decisions in this state hold that testamentary capacity exists if at the time of the execution of the will the testator is possessed of sufficient mental capacity to be able to understand the nature of the act he is performing, and to understand and recall the nature and situation of his property, and to remember and understand his relations to the persons who have claims upon his bounty, and whose interests are affected by the provisions of the instrument.

While in the instant case, the testatrix was in feeble health, suffering from disease, aged and infirm, these facts are not sufficient of themselves to establish testamentary incapacity unless it be shown by a preponderance of the evidence that her condition of mind and body at the time of the execution of the will was such that she was unable to understand the nature and situation of her property and the disposing of it intelligently. In other words, it must be shown that her weakened and enfeebled condition had a direct influence upon the testamentary act. Section 20 of the Probate Code empowers every person of sound mind, over the age of 18 years, to dispose of his separate property by will.

In the case at bar it appears without contradiction that on October 11, 1944, the testatrix requested a bank official to have Attorney Hasbrouck call upon her. It is also uncontradicted in the record that when he called on the testatrix she admitted him to her' home and concededly was in full possession of her faculties, for at that time she gave the attorney minute, full and comprehensive instructions regarding the terms of the will which she desired him to prepare for her. The attorney made notes of these instructions, and the will here under attack was prepared in accordance with such directions of the testatrix.

It should also be remembered that without contradiction it was established at the trial that on October 15, after decedent had taken to her bed, she advised the witness Wellman that she “had made a new will,” gave him Attorney Hasbrouck’s professional card and asked him to see the attorney on the following morning and “have him come right out.” There cannot be any question but what the testatrix then knew and understood what instructions she had previously given the attorney and what she proposed to do with her property. Neither can there be any. doubt that the will executed on the following day, October 16, was prepared in accordance with her previously given instructions. It is not contended, nor was it shown at the trial, that the testatrix was afflicted with insanity or that she suffered from any delusions or hallucinations. Her claimed incompetency is, predicated solely upon alleged physical infirmities occasioned by bodily illness. All of the testimony produced in behalf of the contestants, and hereinbefore narrated, concerned the condition of the testatrix before and after the execution of the will, and was admissible only as it tended to show that condition at the very time the will was made. True, some of the

Before a solemnly executed will may be set aside, the claimed infirmities of mind or body must be shown to have had a direct bearing upon the testamentary act, and the evidence must establish the fact that the deceased devised or bequeathed her property in a manner which, except for the claimed infirmities, she would not have done. (Estate of Schwartz, 67 Cal.App.2d 512 , 519 [ 155 P.2d 76 ], and cases therein cited.)

There is no such showing by substantial evidence in the instant case.

The evidence in the case with which we are here concerned is very much weaker than that held insufficient to justify the setting aside of the wills in other cases decided by the appellate courts of this state. It is unnecessary to do more than to cite the following authorities in support of this statement: Estate of Perkins, 195 Cal. 699 [ 235 P. 45 ]; Estate of Clark, 170 Cal. 418 [ 149 P. 828 ]; Estate of Chevallier, 159 Cal. 161 [ 113 P. 130 ]; Estate of Purcell, 164 Cal. 300 , 305 [ 128 P. 932 ]; Estate of Casarotti, 184 Cal. 73 [ 192 P. 1085 ]; Estate of Finkler, 3 Cal.2d 584 [ 46 P.2d 149 ]; Estate of Garvey, 38 Cal.App.2d 449 [ 101 P.2d 551 ]; Estate of Schwartz, 67 Cal.App.2d 512 [ 155 P.2d 76 ]; Estate of Kendrick, 130 Cal. 360 , 363 [ 62 P. 605 ].)

The burden rested upon the contestants throughout the case. Taking all the foregoing evidence adduced by them as true, it falls far short of the requirements of the law as constituting satisfactory rebuttal of the inference of testamentary capacity at the time of the execution of the will, the existence of which is destroyed only when it is shown by substantial evidence that a testator was unable to understand and carry in mind the nature and situation of his property,

The foregoing conclusion at which we have arrived renders it unnecessary to discuss or decide other issues presented on this appeal.

Their day in court was had by all the parties to this proceeding and the litigation should be terminated without unnecessary delay and further expense. The motion of the proponents and appellants for a judgment notwithstanding the verdict should have been ruled upon and granted.

It appearing to us from a consideration of the entire record that the same fails to disclose any substantial evidence that at the time of the execution of the will the testatrix was of unsound mind, and that therefore a verdict should have been ■directed in favor of proponents and appellants, and that a motion therefor was made before the entry of judgment, the judgment rendered is reversed with directions to the court below to enter judgment in favor of proponents as prayed.

York, P. J., and Doran, J., concurred.

Respondents’ petition for a hearing by the Supreme Court was denied August 28, 1947. Carter, J., voted for a hearing.