112 Cal. 296 | Cal. | 1896
A document purporting to be the last will and testament of Pilar Calkins, deceased, by which she gave all of her property to her husband, Albert C. Calkins, and appointed his father, J. W. Calkins, the executor thereof, was presented for probate to the superior court of the county of Santa Barbara by said J. W. Calkins. Prior to the day set for hearing the application for its probate, Eduardo De La Cuesta, a brother of the deceased, filed written grounds of oppositian to its probate, to which the proponent made answer, and the issues presented by this contest were afterward tried by a jury. When the cause came on for trial, upon motion of the contestant, the names of Mrs. J. W. Calkins, Albert C. Calkins, and Mrs. Lily B. Parsons were added as defendants in the proceeding, the two of whom filed a disclaimer of any interest therein. At the close of the testimony all of the issues, except those upon the claim of undue influence, menace, and fraud, were waived by both parties, and the follow-special issue was submitted to the jury:
“ Did the said Pilar Calkins, at the time of signing the instrument here offered for probate, sign or acknowledge the same under undue influence, duress, or menace of the defendants, or any or either of them?” To this issue the jury replied in the affirmative. The court thereupon rendered its judgment, denying probate to the will. A motion for a new trial was made by the proponent and the defendant, Albert C. Calkins, and, having been denied by the court, an appeal has been taken by them from both the judgment and the order denying a new trial.
1. The appeal from the judgment was not taken until more than sixty days after its entry, and for that reason, must be dismissed. A motion has also been made on behalf of certain heirs at law of the deceased, who did not appear or become parties to the proceeding in the court below, to dismiss the appeal from the order denying a new trial, upon the ground that no service of the appeal has been made upon them; but upon the author
2. We are of the opinion, however, that the evidence fails to sustain the verdict of the jury, and that the order denying a new trial must be reversed. We find in the record no evidence tending to show that the testatrix was subject to any menace, duress, fraud, or undue influence in the execution of her will, or that the document presented for probate is not in all respects the expression of her own volition. There is no evidence that any person ever spoke to her in reference to the manner in which she should make her will, or gave her any suggestions in reference thereto.
The will was drawn by Mr. Wright, an attorney in Santa Barbara, at the request of the testatrix, and in accordance with instructions given him by her, and it does not appear that he had ever seen her before she came to his office for the purpose of having her will prepared. On the day before it was executed, while she was on her way to his office for the express purpose of having him prepare it, she met him and requested him to do so. Upon his asking her how she wished it prepared, she said to him that she desired to will all of her property to her husband, and gave him his name. An appointment for the execution of the will was then made between them for the next day. On the next day she visited his office, and the will was read to her, and her attention drawn to the fact that she had not designated any person as executor, and that a blank had been left in the draft of the will for his name,. When Mr. Wright asked her whom she desired to have as executor, she asked him if her husband could be executor, and as he started to write her husband’s name in the will she stopped him, and after a moment’s reflection said, “ I thinkl will have father Calkins for executor,” and directed him to put in the name of J. W. Calkins: Mr. Wright then wrote the name of the proponent in the place left in the draft for that purpose,
The respondent does not claim that there is any direct evidence in support of the verdict outside of the evidence of certain declarations of the testatrix. The evidence chiefly relied upon by him consists of certain declarations made by her, which were admitted in evidence over the objection of the proponent. To the extent that these declarations at or prior to the making of the will, afforded any evidence bearing upon the state of the testatrix’s mind at the time of the execution of the will—her mental capacity, the condition of her mind toward the object of her bounty, as well as toward the persons by whom she was surrounded, and the correspondence of her acts with the feelings and purposes entertained by her at the time she executed the will— they were properly admitted, and were entitled to consideration by the jury; but, to the extent that they purported to be declarations of the acts of others, or of her
In order to establish that a will has been executed under undue influence, it is necessary to show, not only that such undue influence has been exercised, but also that it has produced an effect upon the mind' of the testator, by which the will which he executes is not the expression of his own desires. The external facts constituting the exercise of undue influence must be established by other evidence than the declarations of the testator. His declarations are incompetent to show either that the influence was exercised, or that it affected his actions, and are inadmissible, except as they may illustrate his mental state, and give a picture of the condition of his mind contemporaneous with the declarations themselves. Whenever the condition of the mind is a fact which it is desirable to prove, it may be established by such evidence as is competent for that purpose. The mental condition of an individual is made manifest to others by his statements, declarations, conversations, as well as by his conduct, and, when the state of a testator’s mind, at the time of executing the will, is the fact to be shown, his contemporaneous declarations or statements furnish the most satisfactory evidence of that fact. His statement of the effect that an act or suggestion of another produced upon him at some previous time is, however, only hearsay, while his statement of his feeling or disposition at the time of making the statement is but the expression in words of
The court should not have permitted evidence to go to the jury of any declarations of the testatrix regarding the statements or acts of those by whose influence it is alleged that she was induced to make the will. Her account of the circumstances attending the execution of the will, as well as her statement to Gates, about two weeks before her death, that Mrs. Galkins refused to let her go to the ranch until she had made her will, were incompetent for the purpose of showing the facts stated by her, and did not, in any respect, throw light upon her mental condition at the time of its execution, or the manner in which she wished to make disposition of her property. The most that could be claimed for this testimony is, that it showed her dissatisfaction with the will, but not that it had been made through any undue influence. A testator cannot, after the execution
The court also erred in permitting the witness, Mrs. Dudden, to testify that, in her opinion, Mrs. J. W. Calk-ins was a penurious woman, and that she knew that she was penurious. The character of Mrs. Calkins in this particular was immaterial to the issue for the purpose of showing whether she had exercised any undue influence over the testatrix, and the only effect of the evidence would be to prejudice the jury against her in determining the issue they were called upon to decide. So, too, the reasons given by Eduardo for not carrying out the wishes of his sister when she asked him to prepare another will, and what he said to her about revoking her will, were irrelevant to the issues before the court, and should have been excluded. By permitting this testimony to be considered by the jury, the court would naturally lead the jury to think that a desire to change her will was evidence in support of the contestant’s claim that it had been originally made through undue influence, whereas, it may have resulted -from a change of purpose formed at the time of the conversation. The declarations of the testatrix with reference to her husband’s treatment of her were also improperly admitted, inasmuch as these declarations did not indicate her feelings in reference to him, except as the jury might be led by inference to conclude that such treatment ought to make her unfriendly to him.
The court instructed the jury as follows: “The exercise of undue influence need not be shown by direct proof. It may be inferred from circumstances, but the circumstances must be such as to lead justly to the inference that such undue influence was employed, and that the will did not express the real wishes of the testator.”
This instruction correctly embodies a rule for the
The court also gave to the jury the following instruction: “Undue influence is that degree of importunity which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act. It is closely allied to actual fraud, and, like the latter, when resorted to by an adroit and crafty person, its presence often becomes exceedingly difficult to detect. Indeed, the more skillful and cunning the accused, and the more helpless and secluded the victim, the less plainly defined are the badges which usually denote it. Under such conditions the results accomplished, the divergence of those results from the course which would ordinarily be looked for, the situation of the party taking benefits under the will toward the one who has executed it, and their antecedent relations to each other, together with all the surrounding circumstances, and the inferences legitimately deducible from them, furnish, in the
This language of the court would be unobjectionable for the purpose of instruction in a treatise upon the various modes in which undue influence may be exerted, or the different conditions under which its exercise may be looked for; but it was not proper to be given to the jury in the present case for the purpose of enabling them to render a correct verdict upon the evidence before them. There was no evidence before them from which they were authorized to find that any of the persons charged with exercising undue influence over the testatrix was adroit or crafty, or that the testatrix was helpless or secluded; and the court did not obviate the error in this instruction by afterward saying to the jury that they were not to presume that the court suggested that such was the fact, but that whether any fact existed which was referred to in the instruction was a question for the jury alone. The concluding portion of this instruction, in which they were told: “ Under such conditions, the results accomplished, the antecedent relation of the parties, the inferences legitimately deducible therefrom, furnish, in the absence of direct evidence, and in the teeth of positive evidence to the contrary, ample grounds for concluding that fraud and undue influence had been resorted to and successfully employed”—in effect told the jury that they were at liberty, under the circumstances of this case, to find that the will under investigation had been executed by reason of undue influence, although there was no direct evidence of the fact, and in the teeth of positive evidence to the contrary. A court should adapt its instructions to the evidence which is to be considered by the jury, and, instead of giving to them definitions of abstract propositions of law, should so connect its instructions with the facts or evidence to which they are applicable as to lead them to make the proper applica
The appeal from the judgment is dismissed. The order denying a new trial is reversed.
Garoutte, J., and Van Fleet, J., concurred.
Hearing in Bank denied.