*1 negli- defendant not recover unless plaintiffs could theory framed on the instructions were gent. Those fact mere erroneous. The for that reason trespass and were can not mentioned as theory trespass such was no difference. make judgment.
I would reverse A. Mar. No. 24145. Bank. [L. 1957.] HAR FOSSELMAN, Estate of WILLINORE M. Deceased. F. SAL PALMER, Appellant, RIET v. CHARLES Respondents. KELD, Executor, al., etc. et *2 George R. for Appellant. McClenаhan Luce, Forward, Scripps Kunzel & Edgar A. Luce for Respondents.
TRAYNOR, petition J. probate Harriet Palmer filed holographic two documents claimed to be codicils to the last will and testament of Willinore M. Fosselman. One reads: give bequeath my friend,
“I to Harriet Palmer, 10,000 ten paid sum of thousand June 17th 1953 to be to her my (death). death
Willinore M. Fosselman - 4656 49th St. Diego,
San Cal.” other reads: 12th, “Jan. die, given “When I I want to this house be to Mrs. Harriet for her to Palmer live if she chooses.
Willinore Fosselman - 49th St.” Charles Salkeld, executor, Rowe, and Adele Marsh F- residuary legatee will, under the contested the admission on probate ground these documents Mrs. Fossel- capacity man lacked the mental to make a valid codicil at them. times she executed jury After a trial without a the court found: “. that at the time said two codicils . were . . . . written, continuously up dated and to the death signed, suffering dеcedent, she was from senile dementia and said incapable was of such mental as to render executing Will, and was an insane delusion family that Harriet an retainer the effect Palmer was old family years many previously, who had been in her and was very friend; actually old fact said decedent employee had said Harriet of only known the Palmer as standing a few when said delusion fixed, months became which said was the effective cause of delusion the execution of said instruments and which instruments would have been the said were it executed testator not for the said (Finding, VII.) insane delusion.”
“. . . that at the time of the execution of each said continuously up instruments and to the time death mentally incompetent the said decedent a Will execute or capacity codicil and had not mental sufficient áble to doing nature of understand the the acts nor to under- stand and recollect nature and situation of her persons to the who relation had claims (Finding ...” VIII.)
Accordingly, judgment denying entered the admis- sion of probate. appeals the two documents to ground findings of the trial court are not supported by substantial evidence.
Prior April, 1950, Fosselman resided in New York *3 City. Company She maintained with the Bankers Trust a account, securities-custodian at the time of her death approximate $460,000. was of the value of The account was supervision vice-president under of Salkeld, Charles F. a upon of company, rely personal came to whom she for and In York, business New Mrs. Fosselman was advice.. intelligent quite age. considered to be alert for her moved to April, Diego, Mrs. Fosselman San Cali intending Shortly to home fornia, make her there. Diegо, tripped lobby her in and fell in arrival a hotel San hip. and suffered broken was treated a She Dr. R. L. Hippen Mercy to Hospital, and removed where she remained hospital for about weeks. While in she executed a seven disposing appointing estate and Mr. entire Salkeld At the same time she asked executor. about Mr. Salkeld Ralph charge Bullock, attorney, New York take of affairs, gave end she her financial and to that Mr. Bullock a attorney. general power Edgar appointed A. Luce was charged management attorney local with the affairs presented to in bills were Mr. Diego. Thereafter all San payment. York for A Luce, who transmitted them to New checking account, $500, small the balance to exceed Diego in in Mrs. name a bank. Fosselman’s San established Mrs1. Fosselman drеw cheeks that account miscellaneous shortly items until before death. On several occasions Bullock Mr. advisable to obtain Mrs. Fosselman’s to the or securities, consent transfer funds and for that purpose signature. Mr. Luce obtained Mrs. Fosselman’s
Upon hospital, her release from the Fosselman Mrs. purchased house, funds, moved with her at 4656 49th Diego. in throughout attended day Street San She was night by working three nursеs of eight shifts hours employed each. A chauffeur was to take her on afternoon Hippen drives. physician Dr. remained her and visited her occasionally. average Luce her on Mr. visited once week. employed
Petitioner was one nurses care for originally Fosselman. She had nurse, served as a relief regular the death of one of the nurses in 1952, employed to attend regularly during Mrs. Fosselmаn p. the hours from m., 7 a. m. and she served capacity until undisputed Mrs. Fosselman’s death. It is appeared petitioner. Mrs. Fosselman to be fond of It is also undisputed that appeared Mrs. Fosselman equally to be fond of the other nurses. Fosselman died on March 25, 1955, age at the of 88
years. family She was the last survivor of 10 children surviving and left relatives nephews. nieces and purported The codicil dated June wаs first dis- covered after Mrs. Fosselman’s death. Petitioner testified that requested she had been to clean out Mrs. Fosselman’s desk doing and that in so she found envelope wrapped a sealed purported tissue. The codicil envelope. Petitioner testified that she had no knowledge of it before that time. January codicil dated 12,1955, was delivered during her lifetime. Peti- tioner January testified that on 12, 1955, Mrs. Fosselman something stated that there was she wanted to do before she forgot it and that Mrs. Fosselman handed piece her a paper, stating, “Here, you honey, read this.” *4 replied, you read and “Well, don’t have to do anything me,” and Fosselman said, Mrs. “Well, I know it. Do you think it right?” is all Petitioner replied, “Yes, it is.” Mrs. Fosselman then stated, “Now, you if don’t think this is ’ ’ you all right, lawyer take it to a and have it checked. Mrs. Fosselman took paper then living to the room and later returned petitioner and handed a sealed envelope, stating, pass I after die or open until not to “Now, you are envelope Mrs. Fosselman’s away.” opened the She that paper Mrs. Fossel- it contained death and found that man had shown her. January 1955, Fossel- 12, that on Mrs. testified Petitioner that her doing, she was to aware what man seemed reasonablе, and that there was logical and conversations were suggest was that she nothing her that would in conduct always had been.” With just like insane. was she “She mental condition June respect Mrs. Fosselman’s Fosselman was gave that Mrs. petitioner Fosselman seemed Mrs. not that in the middle insane, world, on in the who her going was be aware what property. some and that she had were, relatives thought had that she known that Fossеlman admitted employee of Mrs. petitioner Fosselman’s in Kansas petitioner that they friends; that were old when mother and explain case, not the that such was would correct right,” but that’s would subse- say, “Now, Fosselman would known in quently that she had Kansas reassert thought sometimes she was New City; that Mrs. Fosselman not that she owned York; that she sometimes did know that it from thought she rented house, 49th Street demanding rent; an increase she landlord who pay money not sufficient often that she did have felt repeated help; constantly; that she herself household insisted that the nurse who died in that Mrs. Fosselman given away that in fact had stolen some chairs had been did think in New York. Petitioner illogical or irrational. testified that this behavior was She person totally unless not consider a insane he was she would of his environment. unconscious neighbors wеre of Mrs. women who Fosselman
Several occasionally years during the who had visited her last five able to with of her life testified converse them simple about domestic and that she not insane. matters during Mrs. Fosselman five Mr. visited times Salkeld years last her life. He testified that mental condi- five deteriorating October, 1950, tion and that from started progressively her death she time until became confused. He nothing recent; that she remembered old events but testified thought New York; that at times she she she constantly enough money did not she have explain her, tried could not when he *5 thought “absorb it”; that she she had once owned a house York although New what had become of it, wondered she had never owned a that there; house she referred to her being deceased brothers as and that on his alive; last visit in March, 1954, he went to on see her the afternoon of one day and morning day, the next but Mrs. Fosselman recognize opinion was unable to him. It was his that from the fall of 1952 until the time of her death Mrs. Fosselman comprehend was unable to prop- nature and extent of her erty or her relation to those who would be the objects natural bounty. of her weekly
Mr. Luce recounted in detail his visits with Mrs. except He testified that one oсcasion, Fosselman. January 31, 1951, Mrs. Fosselman was unable to converse intelligently with him property about her or affairs; business she could not tell him about her that accident in the hotel; could not that she understand the settlement that was made despite repeated with insurer; the hotel’s that his explana- tions, she could understand money the source of the that being pay expenses used nurses household ; that shе referred to some family deceased members of her thought being alive and dead, as that others were who in fact persistently that she alive; petitioner were claimed that had for her worked mother Kansas anwas old friend repeated explanations despite petitioner that was not even gave the time born at referred to. Mr. Luce his 1952 until the time of her death that Mrs. Fosselman from unable to comprehend the nature and extent of her property or her relation to those who would have a natural bounty. claim Hippen
Dr. testified Mrs. Fosselman was unable to comprehend going on what was around her; that she was “completely time”; associated about frequently never she thought she was in New York City; that she did not “associ- persons around being ate” the her “as nurses” and “never quite comprehend they did who they were or what were and frequently got she up people them mixed with she known had in the past”; thought she was destitute and fre- quently expressed the fear that pay she would be unable to his that from on she bill; from de- senile generalized mentia, softening impaired owing the brain supply, blood and that in his opinion, Fosselman, Mrs. 1952 until the death, comprehend -time of her was unable to the nature аnd extent relation to those who objects would be the natural attending Stephens, one of the nurses Lola R. Mrs. Fossel- many Fosselman had stated man, testified times although worked for Mrs. Fosselman’s mother, Stephens repeatedly her; corrected that any reading; that she was confused could not understand was; and that she where she her brothers although her brothers were pay bills, would dead. Mrs. Fosselman’s Lumpkin, chauffeur, Mortimer testified *6 thought that she had known that Mrs. Fosselman and that often she was in Kansas New York. qualification Lengyel, psychiatrist a to whose Dr. Carl coun- long a hypothetical question answer to stipulated, sel based evidence, stated his that from 1952 until her death the time of from probably disease, brain and of arteriosclerosis, unsound during period comprehend mind, and that she could or extent of her or her nature relation those objects who would be the natural Finding Testamentary Incompetency General of Supported by Is the Evidence.
Relying
successfully
on
well established rule that
ground
capacity
on
of
contest a
lack of
a
contestant
prove testamentary incompetency
must
at the time of execu-
(Estate
Lingenfelter,
tion of the will
690].) testamentary incompe- it Once is shown it tency and that is mental disorder of exists caused general nature, the inference is reasonable and continuous (see Baker, 430, ; Cal. P. Estate 176 437-438 [168 881] legal there perhaps pre Vitale even a Vitale, supra), v. is sumption (Code 32; Proc., Civ. subd. see Estate § Byrne Cal.App.2d P.2d Schwartz, 512, 521, 76]; 522 67 [155 Fulkerson, 171]; Mo. Bever v. v. 254 123 S.W. [162 1072]) that the in Spangler, 93 Iowa 601 N.W. [61 competency particu is continues exist. inference Such larly strong in in which the decedent was a case such suffering from disorder that becomes dementia, senile mental progressively (Byrne at Fulkerson, supra, v. Mo. worse. 597.) at 123; Spangler, supra, v. 93 Iowa 121-122, Bever ‘‘ begins progressive in character gradually, dementia is Senile well-nigh stripрed stages and in ‘the its advanced brain ’ determining point difficulty at its functions. The lies in they impaired progress its has so the faculties (Byrne legal capacity. Fulker fall below mark ...” v. ed., Page Wills, son, supra, 121; Mo. at see Lifetime testimony Salkeld, 1, p. 284, 138.) vol. Mr. § Hippen, Lengyel Mr. Dr. there is an abundance Luce, and Dr. reasonably from trial con- of evidence which the court could until the death Mrs. Fossel- clude that time *7 stage suffering from man was senile dementia an advanced comprehend not the and character could extent and that she the to those would be relation who testimony, the objects of her Petitioner’s natural the that Mrs. Fossel- themselves, and fact purported codicils her name account 'established in on a small man drew cheeks thought it Bullock advisable occasions Mr. on several and thаt of funds or securities to the transfer obtain consent presented evidence that with the conflicts evidence constitute resolved that conflict and trial court The by contestants. incompetent. say as We cannot was the decedent found that finding unreasonable. was law that the matter of Suffering an Insane Was Finding the Decedent that The from Identity Supported is Petitioner’s as to Delusion Evidence. by the finding insane de the supporting The evidence the supporting evidence stronger than the even lusion is evidence abundant incompetence. There is general finding petitioner that persistently claimed Fosselman that Mrs. mother in friend had worked Mrs. Fosselman’s an old who contrary. repeated explanations to the despite Kansas Fosselman entertained Petitioner herself testified only thаt belief. The evidence that Mrs. Fosselman was ever testimony petitioner’s rid delusion able to herself is explain that when would to Mrs. Fosselman mistaken, say, “Now, Fosselman that’s would right.” shortly Petitioner however, that thereafter admits, Mrs. Fosselman would her unfounded reassert belief. Finding
The the the Insane Delusion Was Effective Purported the Cause Execution the Codicils Is Supported by the Evidence.
The burden prove contestants to that Mrs. Fosselman was from the insane delusion but that directly upon delusion “bore and influenced purported (Estate creation and terms” of the codicils. Perkins, supra, 195 Cal. 704.) at points testimony uncontradicted that Mrs. Fosselman was fond of petitioner and it contends could be inferred there- from that purported codicils were the result of that affection and not found, insane delusion. The court however, that were codicils the result of the insane delusion, and that reasonably conclusion is too inferable from the Although evidence. undisputed it is that Mrs. Fosselman was fond of petitioner, undisputed also equally fond of the other may nurses. It have been significant to the trial bequests court that no were made to any of the other say nurses. We cannot as a matter of law that the trial court could not find the facts as it did. judgment is affirmed.
Gibson, J., Spence, J., McComb, J., C. concurred. Schauer, J., judgment. concurred Shenk, J., judgment I concurin the CARTER, affirmance, J. commenting upon gracious I cannot refrain declara narrating majority overwhelming tion opinion, in support finding evidence of the of the trial on the testamentary issue of of the that: testatrix, “We *8 say finding cannot as a matter of law that the was unreason any finding сompe able.” How of fact based sufficient anything beyond tent evidence could be is “reasonable” my comprehension. majority uphold But for a of this court to
188
undue
incompetency or
finding
testamentary
of
influence
a
only
event that
can
such an unusual
a will contest is
majority opinion
language. The
by unusual
characterized
11
testamentary incompe
it is shown
also states:
Once
by a
tenсy
caused
mental disorder of
and that it is
exists
the inference is reasonable
general
nature,
and continuous
.
the
continues
exist.” It
. .
[citations]
an
my understanding that the reasonableness of
infer
is
by a trier of fact on
a conclusion reached
sufficient
ence or
competent
is for this court
determine. On the
evidence
the
the
made that
evidence is
hand,
other
when
claim is
finding
fact,
of the trier оf
the
support
the
insufficient
determination
is limited to a
of whether
function of this court
any
evidence, including
pre
there
substantial
inferences
is
may
proven facts,
sumptions
support
which
arise
when a trier of fact has
reached,
resolved
conclusion
binding upon
appellate
determination is
an
an
of
its
fact,
issue
against
evidence
such determination is such
court unless the
contrary
to nо
minds could come
other but a
that reasonable
by the
than that reached
trier of
this
fact.
conclusion
of the inferences to be drawn from
process the reasonableness
of
is for
trier
proven facts
fact and not
quoted language from
appellate
major
The above
court.
concept
appellate
ity opinion gives rise to a new
of
by
concept
trial сourts,
determinations
review of factual
invoked
in will contest
when
I assume will be
cases
fit
affirm a determination
court that
court sees
trial
testamentary incompetency
of the
will
invalid because
of
is
procured by the
of
or was
undue influence
the testator
pointed
of
will. As I have heretofore
out in
proponent
(Estate
Lingenfelter,
my dissenting opinions
[L. 1957.] Department THE PEOPLE Works, Ap- ex rel. of Public pellant, Respondent. FRED RUSSELL, v. J.