Estate of LUTHER BRISTOL, Deceased. AGNES BRISTOL, Appellant, v. EDITH YOUNG, Respondent.
L. A. No. 18641
In Bank
Dec. 1, 1943
December 27, 1943
It follows that the commission did not exceed its powers in determining that Miller Oil Products was the general employer of George Ivy at the time involved, and in holding the petitioner liable for the payment of the award to his dependents.
The award is affirmed.
Gibson, C. J., Curtis, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred.
Petitioners’ application for a rehearing was denied December 20, 1943.
Don Lake and Charles G. Young for Respondent.
SCHAUER, J.--The controlling question on this appeal is the sufficiency of the evidence to support the finding of the trial court that “the deceased never cancelled or destroyed
Appellant-contestant relies upon the rule stated in
It should be noted that the above-quoted presumption which is relied upon by appellant-contestant is qualified by the further statement in 26 California Jurisprudence at page 807, in section 141, that “Nothing else appearing, the admission of the writing to probate as a lost or destroyed will must be denied. However, the proponent may secure the admission of the instrument by presenting evidence which rebuts the conclusion or presumption that arises from the facts of possession by the decedent and loss or disappearance... It follows that the proponent is entitled to a favorable decree where he presents evidence showing that it is equally
The mooted codicil was referred to by the parties throughout the trial as the “lost codicil” and will be so designated in this opinion. Viewing the evidence in aspects most favorable to sustaining the attacked finding (Von Breton v. Hicks (1942), 55 Cal. App. 2d 909, 912 [131 P.2d 560]), the facts appear as hereinafter narrated.
Luther Bristol successfully raised a family of five children, including four sons and one daughter, Edith Bristol Young, the respondent-proponent herein, and accumulated a modest fortune. Late in life, apparently having lost his first wife, the mother of his children, he took to wife Agnes Bristol, many years his junior. This latter marriage did not produce an altogether harmonious union. It was punctuated by a separate maintenance action filed by Agnes, by a cross-complaint for divorce filed by Luther, by an amended complaint on the part of Agnes also seeking a divorce, and by a rescission suit instituted by Luther in which he sought to recover from Agnes certain income-producing real property which he had deeded to her. The divorce litigation ended in an impasse in which neither party was granted a decree and the rescission action was dismissed in reliance upon a false representation by Agnes which will shortly be referred to again. The principal result of the controversy being litigated is the determination of whether Agnes, the widow, or Edith, the daughter, shall administer the affairs of the estate, and whether a crippled granddaughter, Rita, who appears to have been definitely in Luther‘s affections, shall inherit a share of the estate.
Luther died on September 30, 1942, at an age of more than ninety-three years. Three testamentary documents are involved in the proceedings: (1) a “Last Will and Testament of Luther Bristol,” dated April 1, 1938, executed when the testator was approximately ninety years of age (and apparently shortly after the marriage to Agnes, the exact date of which does not appear); (2) a “Codicil to My Will Dated April 1, 1938,” itself bearing the date of July 28, 1939; and (3) the lost codicil, dated April 28, 1941. Another instrument, admittedly lacking testamentary competence, was found typed on the first codicil. It was prepared and typed by a
There is no contest as to the will of April 1, 1938, nor as to the codicil of July 28, 1939. The issue is joined solely as to the codicil of April 28, 1941-the “lost codicil.” And it is not as to the fact of its original due execution but only as to the fact of its existence at the time of Luther‘s death that there is conflict. By the original will of April 1, 1938, Agnes, the newly acquired wife, was nominated executrix without bond, she was devised certain income-producing real property improved with a four-unit flat building and a single family residence, and, with the testator‘s children, was made a residuary legatee. The codicil of July 28, 1939, revised the original will (of April 1, 1938) only as to provision for the testator‘s son Walter and his granddaughters Ruth and Bernice Olsen. It does not affect the interests of either Agnes Bristol or Edith Bristol Young and has no significance in the litigated controversy except as it may tend to depict the scrupulous care and concern which the testator manifested for his own children and their children.
The lost codicil (of April 28, 1941), however, effects substantial changes in the testamentary plan. Subsequent to execution of the original will of April 1, 1938, and the first codicil of July 28, 1939, Mr. Bristol had deeded to Agnes the real property which had been the subject of his testamentary devise to her, and he had learned that his beloved granddaughter, Rita Fox, was not deceased, as had been believed at the time of execution of the earlier documents. (Rita had disappeared and remained absent from her family without communicating with them for an extended period; she returned prior to execution of the lost codicil.) The lost codicil revoked the provision of the original will devising to Agnes the subsequently deeded property, revoked the nomination of Agnes to act as executrix without bond, nominated Edith Bristol Young as executrix in place of Agnes, and added the name of Rita Fox (daughter of the testator‘s son Walter Bristol) to those of the granddaughters designated in the codicil of July 28, 1939, to share in the remainder of the limited devise to Walter. The original will also made testamentary disposition of certain parcels and items of property to the several children and various grandchildren, and it
The evidence tends to show that Mr. Bristol, after executing the lost codicil, never changed his mind as to providing for Rita, the returned granddaughter, or as to revoking the devise of the income property which had been deeded to Agnes, or as to appointing the daughter, Edith Bristol Young, as executrix. Mr. Bristol apparently was of sound and disposing mind up to within a few hours of his death.
Until a few days before his passing, Mr. Bristol kept on his body a money belt in which he had deposited $5,950. This money at that time, in his presence, by his direction, and in the presence of others of the family, was handed to Mr. Charles G. Young, the husband of Edith, and a member of the bar, for safekeeping. While no oral statement was made specifying in words that this money was entrusted to Mr. Young because his wife (Mr. Bristol‘s daughter) Edith was, by the terms of the lost codicil, to be the executrix of Mr. Bristol‘s will, the reticence of those participating in the conversation to speak bluntly concerning such matters at that time is easily understandable and the inference which the trial judge drew from the circumstances, to the effect that such was the object, the intent, and the understanding of the parties, is a reasonable one.
It is noteworthy that the petition for probate of the lost codicil expressly charges that such lost codicil “has never been revoked and was in existence at the time of the testator‘s death, but was destroyed and petitioner alleges on information and belief that said codicil was destroyed by Agnes Bristol, the surviving wife of the deceased.” (Italics added.) Nowhere in the record does it appear that Agnes as a witness expressly or specifically or directly denied this charge. There is testimony that at a time eight days before Mr. Bris-
That Agnes had knowledge of the lost codicil, and of its contents and potential effect, is established. Mr. Bristol himself, in the presence of his attorney, told her that he had “changed” his will and that “Edith is going to be the executrix.” He said to her: “Why, Mrs. Bristol, you would not put a loan on this property?... I have given you that, and that is all you are going to get out of my estate... I have told you that I have changed my will, and that Edith is going to be the executrix, and that you are to have the property to provide for yourself the rest of your life... If you are going to make a loan on that property, I will not permit Mr. Lake to dismiss this case.” (Italics added.) While some of the testimony of Agnes appears to have been positive and emphatic to the degree of the dramatic, that pertaining to her knowledge of the lost codicil apparently was neither positive nor convincing to the trial judge. By way of illustration the following questions and answers are informative:
“Q. And did you ever see either in my office or in the possession of Mr. Bristol or about the home of yourself and Mr. Bristol, a codicil to his will which had been prepared by me?
“A. I don‘t think I have, Mr. Lake.
“Q. In other words, as far as you now recall you never saw that document at any time?
“A. I do not think so.” (Italics added.)
To an extent seldom seen in a record, that before us in this case discloses on the part of Agnes Bristol, as a witness, an apparent determination to evade direct and forthright answers to pertinent questions. Repeatedly, through many pages of transcript, the trial judge is shown to have patiently and diligently, and by necessity, admonished her to answer directly and responsively material questions properly addressed to her. The recitals as to money and property which Agnes procured from Mr. Bristol at the time of and after her marriage to him, and the method she employed on one occasion, leave no doubt as to the legal sufficiency of the evidence to support a possible conclusion of the trial judge that the procurement of money and property from Mr. Bris-
The title to the income property which Mr. Bristol deeded to Agnes was clear and apparently he was insistent that it be kept clear of encumbrances. She also promised that she would not sell the property. When questioned as to whether she had falsified to Mr. Bristol concerning the procurement of a loan on this property contrary to his admonitions, Agnes at first denied that she had placed an encumbrance upon it. She testified, “I did not, I sold it, I didn‘t put a loan, I sold it.” The following questions and answers then appear:
“THE COURT: The question is, did you tell your husband that you were or were not putting a loan on it, what did you tell your husband about a loan?
“A. I put a loan on first, and then I saw that I would lose the property, I could not make expenses and I sold it.
“Q. BY MR. LAKE:... My question is, at the time that you came to my office for me to sign this dismissal, when I told Mr. Bristol that you were trying to put a loan on the property, isn‘t it a fact that you turned to him and said, ‘I am not, I have no intention of putting a loan on this property‘?
“A. Well, I did not at that time, because there was already a loan on it, Mr. Lake.
“Q. I am not questioning whether or not there was a loan, did you tell Mr. Bristol that you had no intention of putting a loan on this property?
“A. Yes.”
The object of the deceit disclosed by the above-quoted questions and answers becomes the more apparent upon mention of the fact that, as disclosed by the record, the object of the call of Agnes and Luther Bristol at the office of his attorney, when the quoted conversation took place, was to secure a dismissal of the rescission suit which had been filed by Mr. Bristol and which clouded the otherwise clear title of Agnes to the property. Agnes’ application for a loan on the property was then pending and the title company had requested the dismissal of the suit with its accompanying notice of lis pendens. Mr. Bristol had no knowledge of the real object of Agnes in seeking the dismissal, and in reliance upon her disavowal of intent to hypothecate the property, in-
Concerning the subsequent sale of the hypothecated property the testimony of Agnes is on the same plane. She at first asserted that she had sold it for “about $4000” and under the probing of cross-examination finally admitted receiving a price of $5,500 for it. Her testimony concerning the regard and intentions of Mr. Bristol for his granddaughter Rita is also enlightening. It will be recalled that neither in the original will nor in the first codicil was any provision made for Rita, it being believed that she was no longer living. Only in the lost codicil, executed after her return, does her name appear. The significant testimony is as follows:
“Q. Did you ever hear Mr. Bristol say anything about Rita Fox, that he wanted her to be a beneficiary under his estate?
“A. She is one of his granddaughters.
“Q. That is not what I asked you, did you ever hear him say that he wanted her to participate in the distribution of his estate?
“A. Yes, sir.
“Q. And you also heard the conversation that he had with his daughter, Edith, before his death, in which he told her, and there was some discussion about him including Rita as a beneficiary in his estate, wasn‘t there?
“A. Yes.
“Q. And he mentioned the fact that he had included her as one of the beneficiaries, didn‘t he?
“A. Sure.
“Q. And you knew that right up to the time of his death, that that was his thought and that was his desire, that Rita would benefit, isn‘t that right?
“A. Well, she is his great-granddaughter [sic].”
The above-quoted testimony obviously depicts a state of mind of the testator which the trial judge could well have concluded was consistent only with the lost codicil‘s being, in Luther‘s belief, unrevoked and potentially operative. There is other evidence in the record, cumulative or corroborative in effect, which likewise tends to show the propensities of Agnes Bristol and the interests of Luther Bristol, but enough has been delineated to require us to hold that the determination
The judgment of the trial court is affirmed.
Gibson, C. J., Shenk, J., and Carter, J., concurred.
TRAYNOR, J.-I dissent. There is no evidence in the present case to support the finding that the codicil was in existence at the time of the testator‘s death. No one saw the codicil after its execution and delivery to the testator on April 28, 1941. It did not appear amongst the papers that the testator kept in his safe-deposit box in which was found after his death, the will of April 1, 1938, a codicil of July 28, 1939, a so-called “Second Codicil” not legally executed, and deeds to his children. There is no explanation for its disappearance between the time of its execution and the death of the testator. No claim is advanced that it was destroyed by public calamity, and any contention that the appellant fraudulently destroyed it in the testator‘s lifetime is dispelled by the trial court‘s finding that it was in existence at the time of his death.
The respondent relies upon evidence with regard first to a conversation between herself and the testator concerning Rita Fox, then to the delivery of testator‘s money belt to respondent‘s husband, and finally to a conversation between appellant and Mrs. Della Bristol, to prove the existence of the codicil at the testator‘s death.
In the first codicil the testator‘s son Walter was given a life estate in certain real property, with remainder to two of Walter‘s daughters. A third daughter, Rita, who had disappeared and not been heard from, was not given an interest in the remainder in view of the understanding, that her two sisters would execute an agreement giving her an equal interest should she return. Rita returned and the lost codicil gave her an interest in the remainder equal to that of each of her two sisters. Some time after the execution of this codicil respondent had a conversation with the testator, as to which respondent testified as follows: “Q. What did he say? A. Well, he said, ‘I must fix it so Rita can get hers,’ and I said, ‘Why, dad, don‘t you remember, you had Mr. Lake fix that up.’ He said, ‘Oh, I had forgotten all about it.’ He was getting very forgetful, he could not seem to remember
This evidence given its utmost weight would prove only that the testator believed that the codicil was in existence at the date of the conversation some two or three months before his death. It in no way proves that the codicil was in existence when the testator died, or even that at any time after the conversation he did not revoke the codicil.
The testator at all times wore a belt containing a large sum of money. Two or three days before his death, after respondent had warned him of the danger of keeping the money belt on, the testator delivered it to respondent‘s husband, Mr. Charles G. Young, for safekeeping. Mr. Young placed the money in his safe-deposit box and properly accounted for it after the testator‘s death. There is nothing in this evidence that has any bearing upon the existence of the lost codicil at the time of the testator‘s death. It is apparently the view of respondent that since the testator named her as executrix in the lost codicil, he confirmed that choice when he turned over his money belt to her husband, Mr. Charles G. Young, for safekeeping. There is nothing in the record, however, to indicate that the testator was think-
According to the testimony of Mrs. Della Bristol, the wife of one of the testator‘s sons, the appellant made the statement to her eight days before the death of the testator that “if she could ever get her fingers on the will and the deeds she would tear them all up except Walter‘s.” There is nothing here to suggest that the will was in existence at the time of the testator‘s death. Nor would this evidence by itself support a finding that appellant destroyed the codicil, and there is no indication in the findings that she did so. There is no evidence that she ever saw the codicil or had any opportunity to destroy it. The bank records show that no one but the testator ever had access to the testator‘s safe-deposit box in which he kept his valuable papers, and in which the will, the first codicil, codicil number two, and the deeds were found after his death. Appellant‘s character, however it is evaluated, and her motives, however suspicious they may appear, cannot stand as proof of the fraudulent destruction of the will when there are no facts or circumstances that make such a destruction plausible. Her own testimony did nothing to establish such a destruction, and it is therefore immaterial whether or not the trial court believed her, for a fact is proved by affirmative evidence, not by disbelief of a witness. (Moulton v. Moulton, 178 Minn. 568 [227 N.W. 896]; Hyslop v. Boston & Me. Ry., 208 Mass. 362 [94 N.E. 310; 21 Ann. Cas. 1121]; Boice-Perrine Co. v. Kelley, 243 Mass. 327 [137 N.E. 731]; see 23 C.J. 51; 32 C.J.S. 1134.)
A finding of fact cannot be sustained if no evidence appears in the record from which the trier of facts could reasonably infer that it is more probable that the fact exists than that it does not. The suggestion in the majority opinion that evidence may be overwhelming in its persuasiveness even though it “may appear relatively unsubstantial if it can be reflected at all-in a phonographic record” is in effect a suggestion that an appellate court may disregard the manifest unpersuasiveness of the evidence it is charged to review. If an appellate court could attribute reality to the phantom of a persuasiveness that does not survive in the record, it
The relation between the presumption of revocation, invoked in the majority opinion, to
Subsequently in Estate of Ross, 199 Cal. 641, 647, 648 [250 P. 676], the court overruled the holding in Estate of Sweetman, supra that a will once in existence is presumed to continue in existence, declaring: “If the rule were otherwise all that would be necessary in order to prove a lost or destroyed will would be to show that the will was in the possession of the testatrix some time, any time, prior to her death with no apparent intervening cause for destruction
While the overruling of Estate of Sweetman did much to dispel the confusion engendered by that case, the relation of
In
The judgment should be reversed.
Curtis, J., and Edmonds, J., concurred.
Appellant‘s petition for a rehearing was denied December 27, 1943. Curtis, J., Edmonds, J., and Traynor, J., voted for a rehearing.
SCHAUER, J.