14 P.2d 768 | Cal. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *399 This is an appeal from an order admitting to probate the will of William Lances, deceased. The order was made following a contest of the will, before a jury. After the presentation of all of the evidence, the court directed the jury to answer special interrogatories favorably to the proponent of the will and dismissed the contest.
William Lances was an unmarried, illiterate but rather shrewd American Indian, and at the time of his death on April 1, 1930, was of the age of about fifty years. He had no children and lived on real property owned by him in Mariposa County westerly from the entrance to Yosemite Valley. A portion of his land was leased to the Associated Oil Company under a twenty-year contract at an annual rental of $1,000. He left an estate consisting of land, a few hundred dollars in cash and other personal property, all of which is said to be of the value of approximately *400 $25,000. After his death the respondent, Abner B. Baker, filed for probate a will purporting to be the will of the decedent, and in which Baker was named the sole beneficiary, and executor without bond. John Brown, claiming to be the uncle of the decedent, filed a contest of and objections to Baker's petition for the probate of the will on the grounds that the will was not executed in the manner and form required by law and that the execution of said will was the result of undue influence on the part of the proponent Baker. The question involved on the appeal is as to the correctness of the action of the trial court in so directing the jury.
[1] In determining whether, in a proceeding to contest a will, the evidence produced by the contestant is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases. (Estate of Arnold,
It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or a directed verdict may be granted "only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given." (Newson v. Hawley,
Considering the evidence in the light of the rules of law to be applied, the record discloses the following facts in support of the contestant's cause:
The proponent, Abner B. Baker, is an attorney at law, but during all of the times involved in this controversy was not engaged in active practice. He has at all times, however, maintained his status as a member of The State Bar on the inactive list. He and the decedent owned and occupied neighboring properties and had been on friendly terms for some twenty years. The decedent was accustomed to consult with the proponent on business and legal matters *402 from time to time. The proponent neither charged nor received from the decedent any attorney fees for legal advice, but the decedent assisted the proponent in performing work about the latter's place at various times and at "hog killing" time. A few days prior to December 19, 1929 (the date on which the purported will was executed), the proponent had occasion to go from his home to San Francisco to purchase and take delivery of an automobile. He requested the decedent to convey him in the decedent's car to Oakland for that purpose. This was done and on the journey together from Mariposa County to Oakland the two talked about the execution of a will by the decedent in which the proponent was to be the sole beneficiary, and it was agreed at the decedent's request that the will should be prepared by the proponent and that it should be signed by the decedent upon their return to their homes. The decedent returned in his own car some time in advance of the proponent, who arrived at his home about noon on December 19, 1929. After his noon-day meal the proponent obtained a pen, ink and paper and in the absence of the decedent, and in his own handwriting, indited the will in question on a table in his own home. At about 2 o'clock in the afternoon of that day the decedent appeared at the proponent's home and in the presence of the two subscribing witnesses signed the document which was complete in form and which named the proponent as sole beneficiary thereunder and as executor without bond. The subscribing witnesses signed as such in the presence of the decedent and in the presence of each other in all respects as required by law.
[5] The foregoing evidence was uncontradicted. Under this state of the evidence there was no basis for the claim, alleged in the document of contest, that the will was not executed in the manner and form prescribed by law. [6] But we are of the opinion that the showing thus made was sufficient as against a motion for a nonsuit with reference to the other ground of contest. It was therefore also sufficient as against the motion for a directed verdict.
We are satisfied that, at the time the decedent consulted with and requested the proponent to prepare the will and thereafter at the time of the execution of the will under the proponent's direction, a confidential relation existed *403 between the two men. There can be no question but that at those times the decedent reposed special confidence in the proponent as one learned in the law. In the preparation and in directing the execution of the will the proponent displayed expert knowledge in the undertaking. In performing it the proponent, as an attorney at law, assumed a duty to the decedent which he was bound to discharge in good conscience and to the best of his ability whatever might be the terms of the will. In that behalf he was not a scrivener, as he contends, merely writing out the document at the dictation of the decedent. [7] It was not essential, we think, that the proponent should have received a cash or other specific consideration for his service in that respect in order to charge him with the relationship of trust and confidence in the transaction. He assumed the position and must be deemed bound by it.
[8] There is next brought home to the proponent an uncontradicted showing that he unduly profited by the terms of the will. He was to receive the whole of the estate, representing a very substantial amount and to the prejudice of the heirs of the decedent. In this respect the case is distinguishable fromEstate of Morey,
In addition to the foregoing there was in the present case active participation on the part of the proponent in the execution of the will. He drew the will, prepared it in his own handwriting, and presented it to the decedent and the subscribing witnesses for execution. It has been said that the drawing of the will by a beneficiary thereunder who was at the time the attorney for the testator, coupled with the latter's age, suffering and disease, raised the implication or presumption that the will was procured by the undue influence of the attorney. (Estate ofMorey,
[9] The proponent was called as a witness by the contestant under section 2055 of the Code of Civil Procedure. When so called the contestant was entitled to rely on his evidence which was favorable to the contestant's claim and was not bound by any adverse testimony which the witness might give. (Smellie v.Southern Pac. Co.,
The order is reversed.
Curtis, J., Langdon, J., Tyler, J., pro tem., and Waste, C.J., concurred.
Rehearing denied. *406