*1 aptly We think the above statement describes the situation bar; ease at view of the record here an appellate holding justified would not be reversible error In not committed the trial of this case. this connection it jury remembered that found guilty issuing check or crime fictitious draft in this transaction, indicating that whole record this guilt case could not be considered one where the de- clearly judgment fendant so shown that to reverse the miscarriage justice. contrary, would be in itself a theOn for jury this court to been say instructed probability would in all have convicted the ease, indulge speculation. would be to sheer given judgment

For the reasons denying and order new trial are reversed and the for cause remanded trial. new

Adams, J., J., and Peek, concurred. No. Dist., Apr. 27, 14155. First Div. Two.

[Civ. 1950] STUART, Estate of THEODORE M. Deceased. GEORGE Appellant, C. STUART, v. ANTOINETTE STUART al., Executors, etc., et Respondents.

Lloyd Philip Appellant. Ackerman Mathews for S. S. Shapro Raymond & Rothschild and T. Anixter for Re- spondents. *2 settling from order appeal an an

NOURSE, P. J.This M. estate Theodore Stuart. in the allowing account and an agreed following forth an state facts are set transcript; Decedent died Jan a clerk’s ment filed in lieu of September 14, 1945. At leaving will dated uary 1946, 15, Trust probate to the American was admitted the time his will Stuart, widow, appointed were Company and Antoinette an inven 12, 1947, the executors filed November executors. oath of the American Trust tory appraisement; and Company inventory to effect the was a true statement con Antoinette deceased, the estate that of Stuart of all affirmation, Inventory “that said annexed contains tained personal property which Affiant claims as her own real and individually and and which asserts is property Affiant not be considered as a of said de should estate inventory which items were in the with an ceased” marked asterisk. and their served filed the executors March

On and for Con- Report of Executors Petition First Account and Stuart, George nephew C. April 9, 1948, firmation Thereof. exceptions filed his to herein, of decedent and and alleged Antoinette that report in which account and (the September 14, made a Theodore Stuart property all probate) its terms and that will admitted 1945, re- September 14, his wife on by decedent and owned community became by which it was held gardless of title personal jewelry certain and exception of property, with the Appellant claimed executrix specifically excluded. effects community certain to account for had failed Antoinette Stuart estate, income of the and and property and other property following ex- properties and interests named certain Bonds, Savings (2) certain shares (1) ceptions : United States proceeds (4) from sale (3) policies, insurance two stock, (5) (home), interest in the estate Mateo property in San process being pro- was in the respondent’s father which filed, (6) property deeded time the bated at the objected hy Appellant cer- also respondent mother. charges. proper The trial of disbursement as not tain items (1) (2), and but found untrue granted exceptions court all property contention of owned decedent conjoint Stuart and Antoinette at the time the will was made community regardless property. became title concluded (4), in exceptions (3), (5), that the- mentioned assets and (6)—specifically policies, proceeds insurance from the sale of home, respondent’s prop- interest estate father and given erty to her her mother—were not erty subject agreement, the will and an order in findings, overruling such exception (7) accordance with and settling allowing report the first account executors.

According upon of the will terms the death of either right, go one all title interest property should the survivor and his or her death the remainder should George nephew, half to one decedent’s Stuart, his chil- dren, designated one half to kin of the wife. Upon George appeal Stuart spe- claims under the cific terms of the will all must remain ruling wrong the trial $70,000 of approximately value excluded from the operation of will and hence from the assets of estate. following He quotes hereby from will: “We do declare *3 that property, personal, all both and real now or owned here- acquired by after jointly, by us or severally, either of us joint tenants, held as possessed by and us or either of us at the time of us, community the death of first of our erty and disposed by as such is Appellant of this Will.” very arrangement claims that the essence of that was that should be all respect everything inclusive in owned either party at the death, excepting only personal date of the first effects; that it is a well principle established in California may that agree any husband and wife property, that whatever community title held them shall property be and property cites eases to the effect joint tenancy that held in community by agreement was found to be property of hus- wife; band and that policy legal contempla- an insurance property tion is can agreement part as such be of property. Appellant that at the contends making time of the of the mutual will Mrs. Stuart an interest in the estate of her father which awas right agreement. could be included in the will

Appellant argues further that admitting the court erred in evidence of the decedent’s oral declaration of intention to the that effect decedent did not intend scope to include in the agreement of will joint tenancy the home held in and erred also policies. He contends life insurance of December will admitting in Mrs. Stuart's quotes will, objections. Appellant 1945, over his suggestion ‘‘. . .At paragraph of which reads: opening dis making I my Stuart, M. am husband, of Theodore items my separate He me posing property. assures of conjoint and mutual in our are not included herein mentioned ain disposed September should 14th, will of disposes my of the same will then separate will of own.” The respondent’s separate trial court held were which the items argues this will property plus personal Appellant effects. evidence. self-serving a declaration which is constituted controlling here whether issue raised The real circumstances admitting evidence of the trial court erred parties relating execution to the and conversations objection Mrs. Stuart the contract-will. Over long trip and said going “We were on a motor testified: you made a separate property, ‘You have me, have some you you ‘I think said, said, will?’ I ‘No.’ He conjoint community prop- make a will of our and I should erty.’ you me, payable Then he said ‘Your insurance is by will, part estate. and never controlled it isn’t tenancy right survivorship is in Our home with the outright part goes to the survivor and isn’t estate.’ you go said, ‘If the home is mine and no He first goI If first it is the I think that is all the estate. same.’ brought we had it and then he home the will discussion about night I signed and I looked it over and read it. the next gave life, everything he ever me I knew I could trust him.” objection

Also over Mrs. testified that Collins September 14th will few after the was executed she con- weeks regarding they will for read herself, sulted the deceased carefully will, particularly portion declaring Stuart “ property community, ‘Ted, and that she I all their said: you that; Tony’s—all like have said that don’t left from father’s mother’s and husband’s *4 gifts during and she has her lifetime are estate you disposed have bound to be of and told her to be and sure ’ you a make out will. And then about the life insurance said part always life was I insurance of the estate and goes life understood that insurance to the widow without part being probated. estate and doesn’t have to be joint aud are held in property, the house lot You also said paragraph say I him said doesn’t that tenancy, but to joint tenancy if house, instance, he for was said community property, go through have would forgotten term procedure it, or redeed I have he legal community property Anyway, legally put it as back used. tenancy. joint He said I have to make other than would that effect and also the life insurance would papers out to way your rearranged. have to be That is the my given I said the fact that husband’s home was to us is. gift father, his would that make difference and from tenancy joint goes and therefore said no it is because through you to be having probated, without probated.” have that doesn’t to be Mr. 30, 1945, On October Simpson Mrs. consulted with prepare deceased have him their They will. testified that deceased them his will September showed 14th, prepared a will for them of like tenor and assured both the life policy insurance included the will prepared for them and that it was not included in own joint his will. will of Mrs. Stuart executed on December 1945, admitted in appellant’s evidence over objection, ap- pears unmistakably have prepared been either deceased attorney some familiar with all these circumstances. This strengthened by observation is further the fact that it closely followed between conferences meaning witnesses joint relative will, discovery through those conferences that he had made a regarding mistake of law proper interpretation of his testimony will. If this received evi- findings dence the order supported and the order affirmed.

Primarily question arises as to what issues were before hearing the trial court. The was had under Code, specifies procedure Probate which under which exceptions to the account provides must be heard. filing exceptions puts in issue “all matters” “may Ordinarily be contested.” when relate items of the account alone no raised, issue fact is at least requires findings none which (Estate of facts. Franklin, 133 Cal. 584 McPhee, Estate 156 Cal. 335 [65 P. 455, 1918E Tretheway, Ann.Cas. Estate Cal.App.2d But here there more before the trial court than the settlement account. There *5 por- of the interpretation the contract proper was issue the in his joined and, parties in that issue tion will. Both of the appellant six issues involved opening brief, states as one of the appeal: intent, purpose in the effect this “What any will-agreement respect to the exclusion ex- property expressly for than that which it enumerates ’ ’ the expressed When the court clusion Í the issue stated authority view for the try that it was without it. Counsel authority. company the Counsel trust insisted that file nothing. granted for appellant said Permission point. but we file, briefs on the These briefs are not the may In it is they assume that satisfied event court. the question no time now to power. the “intent, purpose the and effect” seeldng

In to determine immediately apparent— became two defenses the contract The fraud. defense first relied mistake and mutual distinguished contract, from the respondent as parties. mutual of the The result of the mistake will was the testimony greater above to that part of the recited relates Company, joint executor, peti- The American Trust issue. petition In it tioned for the settlement account. its ownership” prayed prop- “a determination of the for erty claimed the widow. these up

set the claim that assets should be held to be parties throughout of the estate. The were accord hearing, opening at of which counsel trust the for the matter, addition, company stated: “the comes before Court as to what includable in the estate conjoint under the terms the mutual and will.” by joint parties, agreement, put ques- Thus all issue the ownership disputed hearing tion properties and the before the trial court was heard on that issue. There respondent position properties took the these in- by mutual cluded in the contract mistake. The took position extrinsic was not admissible for that purpose.

Apparent free through consent is not when obtained mistake (Civ. Code, 1567.) may or fraud. A mistake of law be § may misapprehension by party mutual or it one be of which (Civ. Code, 1578.) In other is aware. either case the § injured may party avoid the or defend rescission against (6 pp. seq.) its enforcement. Cal.Jur. et That prove extrinsic evidence to mistake is admissible is not only proof that is manner in which questioned since such can made. ground point agreed. we are But there is another

On compels I an believe affirmance of order and that that in so far as the contract-will is a contract it was a fraud under the found in The conceded are that all Civil Code. facts prop- and held husband was erty Colorado). (except lot in State of All the one *6 erty separate standing in was her the name the wife property. community a will In the absence of all the interest gone surviving husband would have to the (Prob. Code, 201). On wife the death the wife intestate § separate property gone half would to the one of her have husband, half would to the deceased wife’s col- (Prob. Code, 223). husband, lateral heirs Hence when the § practicing attorney, persuaded the wife to enter into the predeceased if she which, him, will-contract under he would take and all her share advantage presumed he obtained an over her which is to have been sufficient consideration, “without under in- undue (Civ. Code, 2235.) fluence.” § principle McKay

This McKay, first announced in 184 v. 742, 746 P. 385], Supreme Cal. where the held Court [195 between “transactions husband and are covered and applicable controlled the rule to transactions between trus and beneficiaries,” tees and that when such conditions are upon shown the burden is the husband “or his heirs” show free McKay transaction was from fraud. case is cited with some since reservation one of the members of this appeal court was the counsel lost who the ease on another judge member the trial though who was reversed. But the rule new seemed at that time uniformly it has been fol lowed, emphasis and with proof on burden of cast on the appear husband, as will from Cover, 133, Estate 188 Cal. ‘‘ 583], 143 P. where the court said: Confidential relations [204 presumed to are exist between and, husband and wife, dealings wife, with his if he an husband, obtains ad vantage her, unimpeached over must stand abuse of presumptively reposed the confidence him by wife and resulting from relation, and, failing marital this, showing must bear the burden of that the transaction was fair just understood party from whom the advantage (Bacon Soule, supra was obtained. Cal.App. v. [19

225 190; Hope, 384)] Fraud, v. ; see. Robins (126 428 P. Smith Brison, v. 75 Cal. 525 Am.St. supra Brison Cal. [7 [57 Jackson, 94 P. ; v. Cal. 446 Rep. 189, 17 P. Jackson [29 689] Sanderson, 189].) 97 P. It is ; 103 Cal. Dimond v. [37 957] between husband and rule in this that transactions state general rule subjected which controls the wife shall be each persons occupying confidential relations with actions of (Civ. as-provided in section 2235 of the Civil Code other, which, applied when to the relation of husband Code, 158), see. every wife, interpreted to mean that ‘in transac has been superior party tion them between obtains against validity possible benefit, equity raises a presumption its affirmatively party proving and casts the burden of compliance equitable requisites thereby its and of over ’ (Odell coming presumption. Moss, 130 v. Cal. 352 P. [62 Warren, ; White v. 120 Cal. 322. P. 129, 52 P. [49 723] Brison, Rep. Brison v. 75 525 189, ; Cal. Am.St. P. 17 [7 689] Pomeroy’s Equity 2 Jurisprudence, 955, seq.; secs. 956, et ” Sanderson, Diamond v. 103 Cal. 97 P. Later [37 import cases of the Norris, are: Norris Cal.App.2d 50 726, ; 733 P.2d Matassa, Matassa v. Cal.App.2d [123 847] ; Locke-Paddon, Locke-Paddon v. 599] 715], Cal. Company objector-

The executor American Trust and the *7 appellant joined in the express contest of the account issue that the claimed the widow was property by contract, parties reason of the and all conceded that at the time of the making of the those items were the separate property of the widow. There was no contest of the parties agreed will. All disposal that the will was a valid “community” property. only controversy The whether contract transmuted the widow’s into community. advantage gained by The the husband over the disputed. because of that never Thereupon contract was presumption the code immediately play into came as evidence the fraud. That such no evidence is longer disputed (10 744.) this state. Cal.Jur. In Stafford v. Martinoni, 192 Cal. 919], Supreme 738 P. [221 “The disputable presumption Court said: raised section 164 of the Civil Code is a form of express evidence under the terms of section may 1957 of the Code of Civil Procedure. It be controverted evidence, indirect, direct or but unless 226 according find jury is bound

so the court controverted 1961-2061.) is, Proe., (Code presumption. Civ. §§ or not jury determine whether court or therefore, for the sufficient to overthrow against presumption is the evidence v. P. Moore Milner, 122 171-179 (People v. Cal. it. [54 171 ; Rooney, Hitchcock v. P. Gould, 151 723-726 Cal. 616] [91 ” Security-First 913].) see Fish v. 285-289 P. And Cal. [152 378, 384 Bank, Nat. 31 Cal.2d [189 10]. is not pleading is concerned it matter as the Insofar affirmatively plead did not argue the widow

sufficient question was discussed That contract. the fraud proceeding for revoca which was (supra) in Estate Cover to the previously issued of administration of letters tion ground that a prior on the She defended widow. right was void to letters purporting to waive her husband right defending In Civil Code. 2235 of the under section (188 Cal. Supreme Court said: agreement the to so attack the statute case, the limitation of the 140) neither 133,' “In such operate to bar the defense of laches will the doctrine nor ground fraud, for invalidity agreement seeking permitted come into plaintiff is long as the so may allege prove defendant agreement, to enforce upon one short, In it is not incumbent as a defense. fraud relief, and ask into court thus been defrauded who has sought may time, and when enforcement abide his but proof of performance him himself from against excuse ; Hart v. P. (Cox Schnerr, v. 172 Cal. 371 509] fraud. [156 910, 59 P. Am.St.Rep. 195, 58 P. Church, 126 Cal. 471 [77 ; McColgan 22 v. Duke, 140 P. 296]; Evans v. Cal. 732] [73 Co. Cal.App. Valley 2 Land Muirland, P. Secret [82 Glass, Ind. ; v. Perry, v. 187 Cal. 420 P. Robinson [202 449] ; Carpenter, 163 Mo. 597 S.W. State 211; Butler v. 823] ” ours.) (Emphasis Tanner, 45 Wash. controversy is present rules to of these application The omitting certain filed an account The widow-executrix clear. will. not included in the she claimed properties which exceptions filed to the under the will legatee Under the terms of the will-contract. in issue putting account specifies procedure Code, Probate may heard, be filed such under which *8 necessary put in issue “all matters” to pleading that is all the only put then issue matter “may contested.’’ which specified the items was whether and contested widow concededly separate property the which were 227 by inclTided in the will reason of at the of the will time the will-contract thus came before the contract waiver. When facing the the court interpretation the court for first 2235 of the Civil presumption was the found Code proof then the and the burden of was cast devisee to portion show the contract of the will—the purported to estate of the widow transmute into community property fair and was was executed after a full do, disclosure husband. This he failed deceased relying wholly upon written terms of document. failure not,

His however, assume burden did fore- part only, by that, taking up, showing close the wife though a full disclosure not been by deceased, he legal her assured as her advisor at time that certain specified separate properties were not At included. this time quote again it would be well to paragraph the first of the con- tract-will which hereby reads: “We do declare that erty, both real and personal, now owned or hereafter jointly, us or either of us severally, or joint held as tenants, possessed by us or either of at the us time of the death the first us, our property and as disposed such is byof this Will.” bewill noted that the “separate property” words do not appear any place at document. This was a term with which the deceased, an able lawyer, successful thoroughly familiar. The widow trusting “signed was a wife who gave everything me all life.” proof But, since the burden was on to show just fair and that the contract “was understood advantage party (Estate from whom the obtained” Cover, supra,) application of opened respondent the door as well to to show that such disclosure made and that (Code was fraudulent Proe., 1856; Civ. 937; Cal.Jur. Zirbes v. Mounsey, § p. Sugarman, Cal. 677 Martin v. Cal. 17 [21 Lawsten, P.2d Fernald 26 Cal.App.2d 742]) and expressly this section of the code declares that its provisions applicable are to wills as to as well contracts be- parties. tween tending kind we find no evidence show

Here was executed, fairly the contract-will that, before thereby right that she waived her respondent disclosed policies, tenancy the life insurance proceeds right family of inheritance in home, *9 testimony showing her All her that those matters father. And all that explained her became admissible. were not they testimony assured her that which showed that deceased beyond parol included was the limitations of the were not relies. evidence rule which presumption Finally, appellant relies the conclusive section 1962 of of Civil found subdivision the Code denying from an act he has prohibiting one which Procedure But “intentionally deliberately another to believe.’’ led justifying the application particle a of evidence there years of lawyer many deceased a presumption. the The legal entirely on his experience. His relied advice wife by instructed prepared will matters. The by no sign. representation made the wife to There presumption applicable. make which would this appellant. affirmed with costs assessed Order DOOLING, J. concur in the af- GOODELL, J., and We sweeping conclusion, which not in the firmance of the order but unnecessary case, the that a mutual decision its, subject separate property to by agrees which a wife burdened goes probate into the dispositive provisions has overreached husband find that there was fraud necessary wife. Nor is practiced by decedent. ample main evidence, pointed out

There is con probate court could opinion, from which the laboring under the decedent and wife were clude that the probate property excluded mutual mistake that included in the terms court’s was not the contract order of the mutual will. both a and a will. Inso The document is contract testamentary subject certain purports far as it dispose of disposition the husband could not otherwise dispositive provisions In its it is will. will it is a contract. subject portion to the rules The document generally. applicable to of mutual mistake contracts pro produced support wife is sufficient to that certain wife was conclusion bate court’s language parties mistake of included mutual parties language used the belief of both will in to relief not cover it. This is sufficient to entitle did ground (Stafford mutual mistake. C. P. on the California We need no Growers, 11 Cal.2d affirm the order. further to