In the Matter of the Estate of ELLA M. WEBSTER, Deceased. JAMES L. CRANE et al., Appellants, v. YOUNG WOMEN‘S CHRISTIAN ASSOCIATION OF SAN DIEGO, CALIFORNIA (a Corporation), et al., Respondents.
Civ. No. 2907
Fourth Appellate District
February 13, 1941
Rehearing Denied March 12, 1941
43 Cal. App. 2d 6
GRIFFIN, J.
Appellants’ petition for a hearing by the Supreme Court was denied April 4, 1941.
Gray, Cary, Ames & Driscoll and John M. Cranston for Respondents.
In November, 1933, Mr. Crane determined that Mrs. Webster was “incompetent and required a guardian for her person and estate”. In January, 1934, he filed his verified petition for appointment of himself as her guardian, through his attorney, A, reciting that “she is not now capable of taking care of herself or her property or effects, but that by reason of old age and the infirmities of such age is unable unassisted to properly manage or care for herself or her property and by reason thereof is likely to be deceived or imposed on by artful and imposing persons”. He secured from her and attached to the petition a written statement signed by her which recites: “ . . . by reason of my advanced years and weak physical condition, I am unable to properly care for my person and estate and request and petition the court that James L. Crane, an intimate friend and neighbor of mine, . . . be appointed as the guardian of my person and estate”.
In February, 1934, Crane was appointed her legal guardian and took over the management of her property consist-
This will was prepared by Mrs. Webster’s own attorney, B. The record discloses that Ruth, a bond salesman who had advised with Mrs. Webster as to investments, and who was one of the executors nominated in the will, about October, 1933, procured another attorney, C, to draw a will for Mrs. Webster, in which he was named executor and was the beneficiary. Mr. Crane had knowledge of this fact. The record indicates that Ruth subsequently misappropriated some of Mrs. Webster’s bonds or stock and an action was threatened against his company. A compromise was effected. Just prior to Mr. Crane’s appointment as guardian, Mrs. Crane consulted attorney B in reference to making a new will for Mrs. Webster, claiming that she felt “terribly tormented about this will that he had drawn . . . and it wasn’t the way shе wanted it, and of course that was affecting her physical condition”. Immediately thereafter attorney B was present at the Webster home with a Dr. Carter, her regular physician, at which time a proposed will was read. The doctor was asked if he would attest the will. After propounding a few questions as to whether she knew what disposition was being made of her property he refused to sign as a witness because she was not “sufficiently clear on the subject”. Nothing further was done at that time.
From February 8, 1934, to January 18, 1939, Mrs. Crane was emplоyed by Mr. Crane as nurse for Mrs. Webster at $15 per week, and subsequently he increased her salary. Mr. Crane also received compensation for acting as guardian during the same period. Shortly after Mr. Crane‘s appointment as guardian he again consulted attorney A about making a new will for Mrs. Webster. Attorney A informed him “that he did not feel that he could prepare a will for Mrs.
Early in March, 1934, Dr. Andrews, a psychiatrist, who had had a previous interview with Mrs. Webster, was called to her home. Attorney D and Mrs. Crane “and perhaps Mr. Crane” were present. After some interview by the doctor, he decided that Mrs. Webster was competent to execute a will although he had no memory that she stated that she wanted the Cranes included in the will. Thereupon attorney D and his wife witnessed the will. The Cranes, although not present at the signing of the will, “were right around the house”. This will, dated March 28, 1934, provided: (1) That all former wills made by her were revoked; (2) that the Society for Crippled Children for San Diego County be given certain real property; (3) that the San Diego Children’s Home Association be given certain other property; (4) a certain portiоn was given to the Rest Haven Preventorium; (5) to Mrs. Davison $2,000; (6) the residue to go to James L. Crane; and (7) James L. Crane was nominated executor without bond.
On January 2, 1935, Dr. Andrews and attorney D were again approached by appellants to examine and interview Mrs. Webster and make a codicil to her will, changing the residuary legatee thereunder to both Mr. and Mrs. Crane. This was done and the codicil was signed and witnessed. Included therein was the following clause: “It has been rumored that another will or codicil subsequent to the one under date of Mаrch 28, 1934, has been signed by me. If true, I hereby revoke any such will or will and codicil. . . .” Shortly after the execution of the will dated March 28, 1934, Mrs. Webster was removed from her home to a home owned by appellants and rent therefor was charged against Mrs. Webster’s estate for this accommodation.
The evidence shows that friends of Mrs. Webster were unjustly precluded from seeing her on many occasions and that when some of them did gain admission Mrs. Crane remained
Appellants filed their answer denying the allegations and filed their opposition to thе probate of the will of February 29, 1932, upon the ground that said will had been expressly revoked by the will of March 28, 1934, and the codicil of January 2, 1935. To this opposition Evan H. Curtiss filed his answer setting forth in substance the allegations of the opposition to the probate of the will of March 28, 1934, and codicil of January 2, 1935. The contest of the respective wills was tried jointly before a jury, appearances having been made by appellants as proponents of the will dated March 28, 1934, and codicil of January 2, 1935, Young Women’s Christian Associatiоn of San Diego, as contestants, Rest Haven Preventorium, and Society for Crippled Children for San Diego County, beneficiaries under the will dated March 28, 1934.
The court directed a verdict in favor of appellants and proponents on the first ground of contest, holding that the evidence was insufficient to show that the decedent was not of sound and disposing mind at the time of the execution of the March 28, 1934, will and January 2, 1935, codicil.
The second ground of contest to the opposition to the probate of the will of March 28, 1934, and codicil of January 2,
Upon the answers returned by the jury the court rendered judgment in favor of the contestant Young Women’s Christian Association of San Diego and admitted thе will dated February 29, 1932, to probate and admitted the will of March 28, 1934, omitting therefrom the clause designating appellant James L. Crane as residuary legatee, and further omitting the clause designating the appellant James L. Crane as executor without bond, and upon motion for new trial, in the absence of special interrogatories submitted to a jury, made its finding and amended judgment deleting the revocation clause of the will dated March 28, 1934. The court further denied probate of the codicil dated January 2, 1935, in its entirety. From this judgment, the amended judgment and order deny-
It is appellants’ contention that the admission to probate of the will dated March 28, 1934, deleting therefrom that portion which leaves the residue of the estate of Ella M. Webster, deceased, to appellant James L. Crane, and the refusal of the court to admit to probate the codicil dated January 2, 1935, constitutes reversible error; that there is no substantial evidence in the record to support the verdict of thе jury, citing Estate of Valladao, 31 Cal. App. 2d 355 [88 P.2d 187], Estate of Burns, 26 Cal. App. 2d 741 [80 P.2d 77], Estate of Kilborn, 162 Cal. 4 [120 P. 762], and Estate of Donovan, 114 Cal. App. 228 [299 P. 816].
It is further argued that the findings of the trial court on questions which were not submitted to the jury, namely, that the revocatory clause and the clause appointing the executor in the March 28, 1934, will was unauthorized, particularly in view of the fact of the jury‘s finding that parts of the will were free from the taint of undue influence; that it is impossible to conceive how the jury arrived at the fact that there was no undue influence on certain portions of the will and then allowed the court on the very same evidence to arrive at the conclusion that there was undue influence exercised in other portions of the same will; that a revocatory clause in a will is as much a part of the will as any other portion thereof; that the provisions of the will are unseverable; that the will should have been admitted in its entirety or rejected in its entirety; that the revocatory clause in the will of March 28, 1934, must stand and therefore the will of February 29, 1932, was thereby revoked in its entirety; and that the decision of the trial court must be reversed.
First considering the sufficiency of the evidence to justify the verdict, appellants concede that Crane, during all of the time in question, was sustaining a confidential relationship to the testatrix, but claim that the presumption of undue influence does not apply because there is lacking evidence of activity on the part of appellants in procuring the execution of the will and that they unduly profited thereby, citing Estate of Baird, 176 Cal. 381, 384 [168 P. 561], and Estate of Holloway, 195 Cal. 711, 723 [235 P. 1012]. We are convinced that there is little merit to this contention for the evidence conclusively shows not only activity on the part
In Estate of Graves, 202 Cal. 258 [259 P. 935], it is said:
“ . . . Three well-established facts, among others, which are recognized as being indicative of undue influence, or a subversion of the decedent’s volition, stand out clearly in the record: The relations between appellant and the decedent afforded to appellant an opportunity to control the testamentary act; the decedent’s condition was such as to permit of a subversion of her freedom of will; the appellant was active in procuring the instrument to be executed. In addition, appellant unduly profited as beneficiary under the will. While none of these circumstances, standing alone, has the effect of creating a presumption against the validity of the instrument, their probative force, in combination, is to impose upon the proponent the obligation of presenting evidence of volition, and to make the question as to undue influence one of fact for the jury’s determination.”
The same “three well-established facts” upon which the court relied in the Graves case also stand out clearly in the record in the instant case. Appellаnts had an opportunity to control the testamentary act; Mrs. Webster’s condition was such “as to permit of a subversion of her freedom of will”; and appellants were active in procuring the instruments to be executed. In addition they unduly profited thereby. In the language of the court all these factors taken together “make the question as to the undue influence one of
If this determination of the trial court was proper, the appellants would no longer have any interest in the distribution made under the will of February 29, 1932, and the remaining clauses of the will of March 28, 1934. In 2 Cal. Jur., page 212, section 54, it is said:
“If a party has no interest in the property in dispute, he cannot be aggrieved by any disposition the court may make of the property, even where the court gives it to the wrong party, and an appeal taken by him will be dismissed.” (See, also, Estate of Zollikofer, 167 Cal. 196, 197, 198 [138 P. 995]; Estate of Land, 166 Cal. 538 [137 P. 246].)
The general rule is that if the whole will is the result of the presence of undue influence, probate of the whole will must be refused. If only a part of it is affected by un-
In support of the court‘s independent finding respondents argue (1) that it was authorized to so find because “the finding of the jury that the residuary clause was obtained by undue influence is a finding that the appellants were active—at least to some extent—in obtaining the will. This is the only ‘fact’ which it is necessary to know in order to declare as a matter of law that the revocation clause and the clause appointing Crane executor were obtained by undue influence”. (2) That from thе facts established by the evidence and the finding of undue influence reached by the jury, as to the residuary clause, there arose an inference of fact and from it there flowed the right of the court to draw the ultimate conclusion of law reached. (
We are not in accord with this contention. The verdict of the jury finding that the appellants used undue influence in reference to the residuary clause of the will would not necessarily be any determination that they used undue influence in respect to the provisions of the will revoking the former will and appointing Crane executor where the jury also found that certain provisions of the same will were not made under their undue influence. In fact the evidence rather strongly indicates it was the intention of Mrs. Webster to change the joint executor Ruth, named in the first will, because of his claimed misconduct and claimed misappropriation. There was highly conflicting evidence as to the question of undue influence in the making of the will and all of its provisions. Assuming there was a presumption of undue influence remaining in the сase, it merely created a conflict which should have been determined by the jury. (Duehren v. Stewart, 39 Cal. App. 2d 201 [102 P.2d 784].) We feel impelled to hold that the trial court should have submitted to the jury the question of whether the revocation
In view of this conclusion, these questions presented by the pleadings have not been properly determined and seriously affect the validity of the orders admitting the 1932 will to probate and denying admission to probate of a portion of the 1934 will and the order appointing an executor. A revocation clause in a will is as much a part of the will as any other portion thereof and the trial court had no right in law or in fact to change the will to its liking as indicated by its statement: “It is my belief that this revoking clause was put in there without a great deal of thought on the part of Ella M. Webster. . . .”
In Estate of Thompson, 185 Cal. 763 [198 P. 795], the following may be found:
“These cases at least make it clear that the revoking clause of a will is a part of the will, and is to be treated as such . . . ” (See, also, Estate of Smith, supra.)
Respondents’ second contention is equally untenable. The findings of the jury upon the issues submitted to them stand the same as the findings of fact made by the court in a civil action, i. e., when we are brought to the consideration of their sufficiency to support the judgment rendered. In the one case the jury makes the findings, and in the other the court makes them.
In Estate of Benton, 131 Cal. 472 [63 P. 775], the case of Bull v. Bray, 89 Cal. 286 [26 P. 873, 13 L. R. A. 576], is quoted to the effect that:
“‘Where probative facts only are found, yet if the ultimate fact flows as a necessary conclusion therefrom, the findings are sufficient; but in order to warrant the appellate court in inferring an ultimate fact from probative facts, it must inevitably follow from the facts found.’ So in a case where the probate of a will is contested, if the issues presented to the jury involve simply probative facts, then, to justify the court in rejecting the probate of the will, the ultimate fact of fraud, undue influence, or mental incompetency must appear сonclusively from the probative facts found. In other
words, the trial court may not indulge in inferences of fact in order to support the judgment it makes.”
The diversified findings of the jury and the evidence presented preclude a conclusion, as a matter of law, that the revocatory clause and the clause appointing Crane executor were made under undue influence. The omission or failure of the court to submit those issues to the jury was prejudicial error. (Estate of Hewitt, 63 Cal. App. 440 [218 P. 778].) The trial of such issues “must be tried by a jury, unless a jury is waived”. (
It is with reluctance that we have reached the conclusion that we are required by law to reverse portions of the judgment, because they are so obviously correct in fact. They are strongly supported by the presumptions as well as the testimony of disinterested witnesses. The residuary clause of the 1934 will making Crane the residuary beneficiary is so closely related to the clause revoking the 1932 will and the clause appointing Crаne executor of the 1934 will that it does not seem possible that any jury would find the first clause void because of undue influence and the other two clauses valid because made voluntarily and free from undue influence or that a trial judge would let any such inconsistent verdict stand should one be returned. However, we have been unable to discover any lawful ground upon which the judgment can be affirmed as it now stands.
We see no reason for a retrial of the issues heretofore found by the jury. The attempted appeal from the ordеr denying the motion for judgment notwithstanding the verdict, not being an appealable order under
The portion of the judgment of the trial court denying probate of the codicil herein mentioned is affirmed. That portion of the judgment denying admission to probate of that
Barnard, P. J., and Marks, J., concurred.
A petition for a rehearing was denied March 12, 1941, and the following opinion then rendered:
THE COURT.—Appellants herein petition for a rehearing upon the grounds formerly urged and for the additional claimed reason that if the finding that they were not entitled to take under the clause of the will devising them the residue of the estate becomes final under the order as affirmed by this court, they would no longer have an interest entitling them to maintain the contest. In so far as James L. Crane is concerned, who is named executor in the 1934 will, there has been no proper determination that he is not entitled to serve as such executor.
Respondents contend in their petition for a rehearing that due to the failure of appellants to submit a special interrogatory concerning the revoking clause and the clause appointing the executor, they waived a finding thereon by the jury. This contention was decided adversely to respondents in Estate of Hewitt, 63 Cal. App. 440 [218 P. 778].
Petitions for rehearing denied.
Appellants’ petition for a hearing by the Supreme Court was denied April 4, 1941.