California Trust Co. v. Nielson

On May 9, 1946, Mary J. Doty made a will leaving her entire estate to Mr. and Mrs. Wilbur Clark or the survivor of them or to their issue in case they should predecease the testatrix. On petition of California Trust Company the will was admitted to probate and the petitioner was appointed executor. Merle Armstrong Nielson, James Armstrong, Charles Armstrong and Jane Irene Briggs filed a petition for revocation of probate charging incompeténcy, fraud, and undue influence of Wilbur Clark and his wife, Sylvia. The cause came on for trial before a jury and at the conclusion of the case for the contestants the court granted a motion for nonsuit and entered judgment of dismissal. The appeal is from the judgment. The points on appeal are that there was sufficient evidence to have sustained a judgment in favor of contestants and that the court was in error in excluding certain evidence which they offered.

At the time of her death on June 17, 1946, decedent was 81 years of age. She had come to Santa Monica from Iowa in March, 1912, with her sister, Lucy, her brother, Charles Armstrong and his wife, and their daughter who is now Jane Irene Briggs. The four lived together until November, 1912, when decedent married Mr. Doty who had migrated from Iowa with decedent and the others. His daughters, Sylvia and Gertrude, remained in Iowa; Rose lived in Ohio. On March 31, 1946, Sylvia received a telegram advising her that her father had suffered a stroke, was critically ill and requesting her to come to him. When she and her husband, Wilbur Clark, arrived in Santa Monica on April 6th, Rose and Gertrude were already there. Mr. Doty died within a few days and his funeral took place April 12th. The three sisters remained in Santa Monica until the 12th. Wilbur remained until April 26th and Sylvia continued to live in the Doty home. Jane Irene Briggs, whom we will call Jane, had resided in California from the time of her arrival in 1912, had attended business college in 1921 and was employed until shortly before she married in 1927. She separated from her husband in 1933 and in February and March of 1946 was employed as desk clerk in a hotel in Long Beach. On April 5th she received word from Mrs. Sperling, a friend of decedent, that Mr. Doty was ill, visited the Doty home on the following day, found the Iowa and Ohio relatives there and her Uncle Frank in bed. The contestants, other than Jane, are nonresidents and did not come to California.

The charges of fraud and undue influence relate to the interval between April 6th, the date of arrival of the relatives from the middle west, and May 9th when the will was made. Wilbur and Sylvia Clark were accused of undertaking to prejudice decedent against Sylvia’s sisters, Gertrude and Rose, and also against the contestants and it was alleged that they made the following representations: (a) that Jane should not receive decedent’s property because she was going to marry a rich old man to obtain his money, (b) that Jane was mad at

There was insufficient evidence to have supported a finding that the testatrix was lacking in testamentary capacity, and the court properly withdrew that issue from the jury. The evidence on this issue established only that decedent’s eyesight and hearing were very poor, and that she was suffering from other infirmities of old age; she discussed events of the past and in doing so was repetitious; she slept a good deal and when engaged in conversation would sometimes fall asleep. No witness testified that her memory was not normal for a person of her age, or that her ideas and speech were disconnected or incoherent. From her activities as related by the witnesses it appears that she knew, and was interested in, what was going on around her; she had some business matters to attend to in connection with her husband’s estate and also concerning the occupancy of a small house on the premises in which Mrs. Sperling was living, and which decedent wished to repossess in order that Mr. and Mrs. Clark and their children might live there; there was no evidence tending to show that decedent was unable to comprehend the nature of these business matters. Although several witnesses testified that in their opinion she was of unsound mind, they gave no specific reasons for their opinions other than her general appearance, manner and condition. Granting to these opinions the greatest possible weight, it could be said only that they were based upon such facts as have been related, namely, the age of decedent, and her obvious lack of mental and physical vigor, a condition which was affected by the shock of her husband’s death. Such opinions added nothing to the other evidence which was relied upon to establish testamentary incapacity. While there was evidence that in the early part of May, when she made Jane a present of a ring, she stated that Jane was “the last of the Armstrongs,” this would appear to have been a mere figure of speech intended as a reason for the gift, and

In support of the specifications of fraud, contestants relied in part upon the testimony of Frankie Jean Hackett, who was Mrs. Doty’s hairdresser and beautician. Mrs. Hackett testified that within a few days after Mr. Doty’s funeral, she had a discussion with Mrs. Doty in the presence of Sylvia during which Mrs. Doty said she was all alone; that “Sylvia said, ‘You are not alone Mother. Wilbur and I are going to take care of you. Let Jane go marry her rich old man.’ And I said: ‘Is Jane getting married?’ and Sylvia said, ‘Yes, she does, not have time for mother any more.’ ” Jane testified that on June 5th she brought up the subject with decedent and told her that the report that she was going to marry a rich old man was untrue, that she had no intention of marrying anyone. In reply, decedent said, “you can marry anyone you want to”; she, decedent, did not want any of Aunt Lucy’s property; Lucy had been mean to her and that she and Sylvia knew this; she, decedent, was going to give the property to Jane; Bose and Gertrude did not like her; if they loved her they did not show it very much, and she and Sylvia knew that they did not. She also said that Mrs. Sperling had told Sylvia that Jane was angry at her, decedent, because she had not purchased some burial lots from Jane. Jane testified that she assured decedent that this was not true, saying, “Why Aunt Mary you know me better than that. Why that just cannot possibly be,” and that she assured decedent that Bose and Gertrude loved her. She also

It must be assumed, as testified to by Mrs. Haekett, that Sylvia did make the assertion concerning Jane’s supposed intention to marry, and the further statement that she did not have time for Mrs. Doty any more. These were evidently assumptions upon Sylvia’s part, with slight or no foundation in fact. However, it was in evidence that Mrs. Doty, Mrs. Soulé, Jane and Sylvia visited the cemetery, shortly after Mr. Doty’s funeral, and that the four traveled in the ear of Mr. Hutchins, who was Jane’s employer. Mr. Hutchins had operated a defense plant during the war, and later made costume jewelry. Jane, with some 19 other persons, had been employed by him from 1943 until the end of 1946, excepting for a brief period in the early part of 1946. She managed the office, took care of the orders, attended to his banking, purchased supplies, and also drove his automobile. At Mrs. Doty’s request Jane had brought Mr. Hutchins to the Doty home, and he was known to them as “Dad.” The circumstances were such as to stimulate family gossip and Sylvia’s remarks fell in that realm, even though they were made for a purpose. It would be difficult to believe that they were intended as representations of fact, when Jane was at hand to refute them if they were untrue. Nor was there reason to believe that decedent would have relied upon mere chatter as against Jane’s positive statement that she had no intention to marry. The only evidence that decedent believed that her nieces, Gertrude and Rose, did not care for her, consisted of a statement she was alleged to have made to Jane to that effect. This, however, was nearly a month after the will was executed, and there was no evidence whatever that either Sylvia or Wilbur Clark had made such a representation to decedent. Nor was there testimony that either of them had represented to decedent that Jane and her mother were unable to take care of her. The additional specification that the Clarks had promised decedent that they would stay with her and care for her without intention to keep the promise was not proved. Wilbur Clark testified that they did make such a promise, but that it was in response to a proposal by decedent that he and his wife remain with her. There was no evidence whatever that they did not intend to do as they

The facts that we have related were relied upon by contestants as supporting their charge of undue influence. In addition thereto they produced evidence that Mrs. Doty had great affection for Jane and had frequently stated that she intended to leave her property to Jane. It is contended, and we think with good reason, that this evidence was sufficient to support an inference that had Mrs. Doty made her will before the development of the intimate relationship between her and the Clarks, Jane would have been named as the principal if not the sole beneficiary. There was certainly persuasive evidence of a complete change in Mrs. Doty’s testamentary plans, and the change has added significance from the fact that a stepdaughter and her husband were made sole beneficiaries and no provision was made for the favorite niece of testatrix.

The fact that a testator makes material changes in his plans from, those formerly entertained, or fails to make provision for those who are closely related to him, should be taken into consideration in determining whether the will expresses his true desires, but neither of these facts is of importance if it is established by the evidence as a whole that the testator was competent and that the will was not the result of mistake, fraud or undue influence. (Estate of Langford, 108 Cal. 608 , 624 [ 41 P. 701 ]; Estate of Wilson, 117 Cal. 262 , 277-78 [ 49 P. 172 , 711]; Estate of Tribbey, 58 Cal.App.2d 100 , 104 [ 135 P.2d 603 ].) However, a study of the entire record leads only to the conclusion that Mrs. Doty changed her plans, not because she became less fond of her own kin, or of her stepdaughters Gertrude and Rose, but only because she developed a greater fondness for Sylvia and a feeling of dependence upon her and her husband. There was no evidence that Mr. and Mrs. Clark controlled or dominated

Different rules apply where the beneficiary occupies a confidential relationship toward the testator and is shown

There was, however, no sufficient evidence of activity on the part of Mr. or Mrs. Clark in the matter of the execution of the will. Mr. Moe Fogel had acted as attorney in the administration of the estate of Mrs. Doty’s brother Charles, and that of her sister Lucy. Carvel Torrence officed in the same suite with Mr. Fogel. There was testimony that after Mr. Doty’s death Sylvia Clark made inquiry as to who was Mrs. Doty’s attorney, but her interest in the matter apparently ended with that inquiry. The circumstances of the preparation of the will were related by Mr. Torrence. On April 17th, he was called to the California Bank by one of its officers, where he met Mrs. Doty. It was suggested by one of the officers of the bank that Mrs. Doty might desire to make a will, but the interview on that occasion was quite brief. If she named her proposed beneficiaries, Mr. Torrence

While Wilbur and Sylvia Clark both had ample opportunity to influence Mrs. Doty to make a will in their favor, and it might reasonably be suspected that they did discuss the matter with her, an inference that they did so would have been unjustified. So far as disclosed by the evidence, Mrs. Doty discussed the terms of her will with no one except her attorney, and then only in the presence of bank officers or a neighbor, Mrs. Harris, or Mr. Thomas. There was no evidence that the matter of a will was ever discussed between Mrs. Doty and the Clarks. If there was activity on the part of anyone, or even a discussion of the terms of the will with anyone other than Mr. Torrence, that fact was not brought to light during the trial. In the absence of evidence of activity on the part of the beneficiaries, or either of them, no presumption arose of the exertion of undue influence by them. (Estate of Hull, 63 Cal.App.2d 135 , 140-42 [ 146 P.2d 242 ]; Estate of Baird, 176 Cal. 381 , 384 [ 168 P. 561 ]; Estate of Garvey, 38 Cal.App.2d 449 , 462 [ 101 P.2d 551 ]; Estate of Lepori, 4 Cal.App.2d 761 [ 41 P.2d 970 ].)

It seems scarcely necessary to add that strong support of the will was furnished by the evidence that Mrs. Doty was free to consult with friends and relatives at all times and that the will was prepared from directions given personally by her to her attorney, in the absence of any interested parties, was executed under like circumstances, and also that she had the will in her possession for more than a month after it was executed. (See Estate of Fraser, 75 Cal.App.2d 99 , 104 [ 170 P.2d 704 ]; Estate of Shields, 49 Cal.App.2d 293 , 301 [ 121 P.2d 795 ]; Estate of De Soberanes, 182 Cal. 525 , 528 [ 189 P. 103 ]; Estate of Donovan, 140 Cal. 390 , 393 [ 73 P. 1081 ]; 26 Cal.Jur. § 78, p. 730.)

Appellants offered to prove that decedent and her sister Lucy inherited more than $60,000 from their father, Dr. Armstrong, who died in 1911, and that he had given decedent $12,000 with which she purchased her home. Objections to the offered evidence were sustained and the rulings

The judgment is affirmed.

Wood, J., and Vallée, J., concurred.