251 P. 637 | Cal. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *752 A petition was presented in the court below for the probate of an instrument purporting to be the holographic will of the decedent, Fred Fleming, by the terms of which he bequeathed his entire estate to Ruth Dover. Henrietta Fleming, surviving mother of the deceased, filed a contest alleging that the decedent was of unsound mind and had not testamentary capacity, and that the will was the result of the undue influence of Ruth Dover, J.C. Duncan, and Kathryn Duncan, who were named as respondents. The matter was heard before a jury, and at the close of the contestant's opening proof the respondents moved the court for a nonsuit as to each of the grounds of contest, but the motion was denied. When the evidence was all in, and before the cause was submitted to the jury, the respondents moved the court for a directed verdict on each and all of the grounds of contest. That motion was also denied. In answer to special interrogatories submitted to it the jury found the deceased was competent, but that *753 at the time of the execution of the will he was not free from undue influence exerted on him by the Duncans and Mrs. Dover. The respondents thereupon moved for a judgment notwithstanding the verdict of undue influence, and the motion was granted. The will was admitted to probate, and the respondent J.C. Duncan was appointed administrator. The contestant has appealed, claiming that the motion for a directed verdict was properly denied, and that the lower court therefore erred in subsequently granting the motion for a substituted judgment.
It is a settled rule of law regarding trials by jury that in a proper case the court has full power to direct the jury to render a verdict. (Estate of Sharon,
Assuming, but not deciding, that the motion for a directed verdict was properly denied for the reason stated, it does not follow that such denial was a bar to the granting of the motion for judgment notwithstanding the verdict. Appellant was not injured. Had the motion for a directed verdict been granted on an assignment of grounds which was insufficient, and the contestant thereby deprived *754 of the opportunity to meet objections, which should have been more precisely stated, by introducing other evidence, she would be in position to complain. But that did not happen. The motion was denied and the case was submitted to the jury, carrying with it the benefit of the court's ruling in the contestant's favor. We are of the view that section 629 of the Code of Civil Procedure relates to the granting of a motion for judgment notwithstanding the verdict in a case in which the motion for a directed verdict "should have been granted" on the evidence, and does not lend itself to the narrow construction appellant attempts to put upon it. Her first contention must, therefore, fail.
Appellant's second contention is that the motion for a directed verdict in this case was properly denied, for the reason that the evidence was sufficient to take the case to the jury. The trial court had power to direct the jury to render a verdict in favor of the respondents, unless there was substantial evidence tending to prove all the controverted facts necessary to establish the contestant's case. It was not necessary that there should have been an utter absence of conflict in the evidence. To deprive the court of the right to exercise its power, if there was a conflict, it must have been a substantial one. (Estate ofSharon, supra, p. 459; Estate of Baldwin,
The evidence does not support the contention of the appellant. Ruth Dover, the beneficiary under the will, is a widow with five children. She is a cripple, without adequate resources, and partly dependent upon her sister and brother-in-law, the respondents Kathryn and J.C. Duncan. There is no evidence that she exercised any influence over Fleming. She sustained no confidential relation to the testator, so far as the record discloses, and did not participate in any way in procuring the execution of the will. No burden was, therefore, cast upon her to show that the will was not the result of undue influence. The burden of proof rested on the contestant. Therefore, unless the evidence was of such a nature that it was sufficient to legally support a finding of undue influence, the motion for a directed verdict should have been granted. (See Estate of Baird,
Appellant sought by her evidence to establish that the Duncans, and particularly Kathryn Duncan, brought about the execution of the will. Briefly, the facts are that Fleming was addicted to the use of strong drink from boyhood. He married the respondent Kathryn Duncan, then Kathryn Root, in 1895, and they lived together for fifteen years, when, because of Fleming's excessive use of liquor, they separated. Mrs. Fleming obtained a divorce, but there appears to have been an entire absence of bitterness between the two. During their separation, and after the granting of the divorce, they were on friendly terms, and subsequently lived together for about three years. Fleming, continuing his drinking, Mrs. Fleming again left him, and he was for a time committed to the State Hospital for treatment for his intemperance. In 1917, Mrs. Fleming married the respondent J.C. Duncan, and the two are now husband and wife. The friendly relations beween Fleming and his former wife continued after her marriage to Duncan, and Fleming was employed by Duncan, and apparently continued to work for him until the time of his death. He was a frequent and apparently a welcome visitor at the home of the Duncans. He was a competent and trustworthy workman, and Duncan gave him steady employment *756 and paid him well. Mr. and Mrs. Duncan advised him, and apparently assisted him in saving and accumulating his wages. He frequently expressed his gratitude to them for the way in which they befriended him, and stated that he desired to make a will in favor of Mrs. Duncan. His offer was declined by both Mr. and Mrs. Duncan, who told him they did not need to be thus remembered, and that they did not want his money. In spite of frequent statements to that effect on the part of the Duncans, Fleming persisted in his desire to leave his estate to his former wife. Finally, both Mr. and Mrs. Duncan suggested that the decedent leave his property to Mrs. Dover, and the result was the making of the will here in question.
There is no question but that the Duncans were so situated as to have had ample opportunity to dominate the mind of Fleming, if that were possible, and they had been so disposed; but mere proof of opportunity to influence a testator's mind, even when coupled with an interest or motive to do so, will not sustain a finding of undue influence, in the absence of testimony showing that there was pressure operating directly on the testamentary act, and to such an extent as to affect the terms of the testament. (Estate of Kilborn,
Appellant has built her contention of undue influence exerted on the decedent in bringing about the execution of the will very largely on the theory that because of Fleming's excessive use of intoxicating liquor he was susceptible to the direction and dominance of the Duncans, for whom, as the evidence shows, he had an apparent affectionate regard. There is no doubt, from the evidence, that at times Fleming drank to excess, but he appears to have been a man of ordinary intelligence and capacity and was a competent and trustworthy workman. It is possible for long-continued use of intoxicating liquor to so permanently impair the intellectual faculties of the person indulging in it as to render him or her incompetent to do any legal act. "But the question, in a case like the one at bar, always is, not whatmight have been the mental condition of the testator at the time of the execution of the will, but what was that condition." (Estate of Wilson,
Appellant insists that the will is unnatural, and that it is contrary to the expressed intention of the decedent, for which reasons, she asserts, undue influence in its procurement must be presumed. The contention rests upon the fact that she testified that her son had, upon occasions, indicated that he proposed to leave his money to her, and that prior to his death he had delivered to her the bank-book covering the deposit of his savings, under a belief that he was thereby transferring the money to her. There is no merit in the contention. (Estate ofDonovan, supra.) If the will here could be considered unnatural, the objection would not be sufficient to overturn *758 it in the face of the established fact of testamentary capacity in Fleming at the time it was executed. (Estate of Wilson,supra, p. 278.) His will is not unnatural. He had no intimate friends other than the Duncans, and had no close relatives other than his mother. He apparently held her in affectionate regard, but rarely discussed his affairs with her. She was quite old, and there is evidence from which it may be gathered that she was sufficiently well cared for. These, and the other facts and circumstances surrounding the testator prior to and at the time of making his will, will constitute a reasonable explanation of his testamentary act, and a clear intent to do it with a full and present knowledge of conditions and consequences. (See Estate ofWilson, supra.) The fact that he said that his mother must not be informed of his making his will is of but little consequence, and falls readily within the explanation of his entire conduct just referred to.
There is much in the somewhat lengthy record which tends to shed light on the situation and relation of all the parties to this controversy and the circumstances under which Fleming's will was made. From our examination of the evidence, we are satisfied that the trial court was correct in its conclusion that Fleming's mind was not held under subjugation by the respondents, or either of them, and that the will was not brought about by the exercise of undue influence exerted upon him. The motion for a directed verdict should have been granted. Consequently the court had power, and it was its duty, to enter judgment in favor of the respondents below notwithstanding the verdict of the jury rendered on the issue of undue influence.
The judgment is affirmed.
Seawell, J., Finlayson, J., Richards, J., Shenk, J., Sullivan, J., and Curtis, J., concurred. *759