J. B. Lankershim, commonly known as Colonel Lankershim, a resident of the city and county of Los Angeles, state of California, died testate on October 16, 1931, at the city of Brooklyn, state of New York. He left a large and valuable estate. J. Wiseman Macdonald and Bank of America National Trust and Savings Association
By paragraph IV, count one, of the complaint, denominated “Complaint—Money on Contract”, plaintiff alleges:
“That during the lifetime of said decedent and on the 10th day of October, 1927, said deceased J. B. Lankershim at and in the city of Los Angeles ... in consideration of and on account of services rendered by plaintiff to and for J. B. Lankershim at his special instance and request,' at divers times and occasions between January 4, 1924, and January 1, 1928, as a companion to him and in reading to Mm, administering to his wants; caring for his welfare; preparing food, meals and delicacies for him; attending to and caring for his wearing apparel and linen; aiding and assisting him in dressing and undressing and other activities of life; protecting him from artful and designing persons; consoling and sympathizing with him in times of worry, anxiety, displeasure and disappointment; nursing and administering to him in times of sickness and ill health; preparing and administering medicines and other treatment as directed by physicians or desired by him and otherwise caring for and administering to his comfort, contentment, welfare, happiness and pleasure, made executed and delivered a certain instrument in writing,” which is marked “Exhibit 1”, of which the accompanying photoprint is a facsimile. (See reproduction on page 418.)
For a separate and second cause of action plaintiff alleges that the decedent for a valuable consideration made, executed and delivered to plaintiff said written instrument and prays for judgment in the sum of $500,000, together with interest thereon as provided by law, and that the same be paid from the estate of J. B Lankershim in due course of administration, and for appropriate relief in the premises.
In both counts of the complaint the kind of services and the period of time in which they were performed are definitely alleged.
Doria C. Lankershim and John I. Lankershim, children of the decedent, and J. Wiseman Macdonald, the executors named by the decedent in his will, were, in due course, substituted as parties defendant in the place and stead of said special administrators. J. Wiseman Macdonald was a trusted and close personal friend of the deceased and had been his legal and business advisor for many years prior to his death.
On October 10, 1927, the day the disputed instrument bears date, the decedent was seventy-seven years of age and the members of his family then living were his wife, Caroline A. Lankershim, and the son and daughter, answering defendants herein. The plaintiff was at said time the wife of Bdres Herbert and was approximately thirty-eight years of age.
Decedent executed his will on March 29, 1929, some seventeen months subsequent to the date which said questioned instrument bears. He died October 16, 1931, and his will was admitted to probate on December 14, 1932. He made no provision for nor mention of plaintiff in said will.
Decedent’s wife predeceased him by three years and a few months. The son, daughter and J. Wiseman Macdonald, executors, deny at length and in detail the genuineness of said instrument bearing date October 10, 1927, and allege by way of separate and affirmative defense matters which are absolutely opposed to and directly tend to refute the
bona fides
of plaintiff’s claim. It is admitted by plaintiff that she wrote all the written matter constituting the questioned instrument except the name “J. B. Lankershim”. It is also admitted that the ink lines drawn through certain printed
It is argued that the face of the instrument is self-accusatory and the doubts and uncertainties which it creates, and the incongruous situation which has been produced by the alleged transaction, are not consonant with the gravity or enormity of the transaction, nor agreeable with any sensible business method which a person of Colonel Lankershim’s business experience and training would adopt for the accomplishment of a much less important transaction. In other words, it is contended by the executors that under no rule of rational conduct can it be concluded that a man who possessed the business sagacity which respondent attributes to Colonel Lankershim would have adopted a plan or scheme of transfer involving a large fortune which held within its basic construction elements which would obviously and inevitably furnish potential grounds of attack, such as are here made upon it.
The executors stress the fact that the signature “J. B.. Lankershim” is divided into three parts, none of which are in alignment, and contend that it was written by a hand tremulous with age and inadequately directed by seriously impaired vision; that at a time when waning faculties had rendered him unable to resist the wiles and importunities of designing persons, a state of superannuation in which respondent herself had placed him, she obtained his signature by deceit and misrepresentations as to the true nature of the instrument, if, indeed, anything at all was written on the paper at the time his name was subscribed to it. That he relied upon others to read to him is firmly established by witnesses on both sides of the case. Plaintiff herself in her creditor’s claim incorporates “reading to him” as constituting one of the assignments of employment upon which she predicates her claim for compensation.
Appellants’ answers are pleaded in both categorical and conditional forms. They direct attention to the fact that all of the printed portions of the instrument were in the form of
The genuineness of the signature is denied on information and belief, but it is alternately alleged that if the signature is genuine, all of the written matter contained in said instrument was written after the signature of the decedent had been affixed to a check or draft and signed by him in blank as a matter of business convenience, made accessible to respondent by reason of the existing close personal and confidential relations which respondent fully describes in her verified claim filed herein. The other alternative suggested is that his signature was procured by misrepresentations as to the character of the instrument made to him when his signature was obtained.
The claim that the body of the instrument was either written in toto after signature, or was originally in form a draft or check in the sum of $500 and was thereafter altered and added to, is based chiefly on the close crowding of the words on the line on which the signature is written, and particularly on the fact that the word “me”, next preceding the signature, is forced upward and out of line to prevent it from overlapping the signature. Other physical characteristics are pointed out as being wholly contradictory of and inconsistent with the claim that the matter which respondent wrote on the blank check truly recorded his dictation or expressed his wish.
By separate answer it is alleged that if said decedent executed and delivered said instrument, no consideration or benefit of any kind whatsoever passed to said decedent for its execution and delivery; that if any consideration passed from plaintiff to decedent on account of the making and delivery of said instrument, such consideration was grossly inadequate and it did not amount to more than a trifle in a transaction involving a half million dollars; that the procurement of that vast sum for such grossly inadequate consideration constituted a fraud practiced upon him.
Said executors further allege that during all of the period from January 4, 1924, to October 10, 1927, decedent was in a weakened and debilitated condition and was being massaged and was receiving physical treatment from a professional masseur who was in daily attendance upon him at the Biltmore Hotel; that on October 10, 1927, decedent was past seventy-seven years of age, and he then was and for several years immediately prior thereto had been suffering from debilitating illnesses which had progressively increased with advancing years, thereby impairing his mental force and vigor to the degree that he-was easily influenced by those who had gained his confidence; that decedent’s eyesight had failed to the extent that on October 10, 1927, if able to read at all, it was only with the aid of powerful lenses, and that at all times herein plaintiff Avas familiar with decedent’s physical and mental infirmities. A condition of atrophied impairment of the optic nerve of decedent’s eyes will later receive attention.
It is further alleged that plaintiff, having formed the intent and purpose of obtaining from decedent a large sum of money, and being a woman thirty-eight years of age, and possessing an attractive personality and ingratiating manners, wove herself into his kindly favor; that she visited him socially on frequent occasions at his rooms at the Hotel Biltmore, and at decedent’s expense she accompanied him to theaters and took many meals with him; that she performed petty acts of service, many of which were unnecessary, and all of them were done for the purpose of winning his trust and confidence and to assist her in gaining a dominating influence over him to the end that she might carry out her purpose of obtaining
In furtherance of her said plan, on or about the middle of August, 1927, she left her Long Beach home and rented living quarters in the Engstrum Apartments in the city of Los Angeles, situated near the Hotel Biltmore, where decedent resided. It is further alleged that by her persuasion he gave up his apartments at the Biltmore Hotel, where he had made his home for a number of years, and on September 1, 1927, moved to an apartment at the Engstrum, selected by plaintiff, on the same floor and directly across the hall from the apartment occupied by plaintiff; that plaintiff visited decedent’s apartment several times each day; that on the day the said instrument is alleged to have been executed she falsely and designedly, with the purpose of unduly influencing him, represented to decedent that she was his only real friend, and that she had done more for him than his children had done, and he ought to make her comfortable because of all her acts of kindness, all of which representations were false, but believed by decedent to be true; that while he was at said Engstrum Apartments plaintiff influenced him to deny himself to his friends, other than such visitors as she elected that he might see.
The answer alleges that before signing, or at the time of signing said instrument, if in fact and truth he actually signed it, in its present form or otherwise, the decedent consulted no attorney or friend, and did not advise with anyone as to its terms or effect, and that it was not the voluntary act of decedent, nor did it express his wish or will, but said instrument is the product of false representations and of undue influence which she brought to bear upon his will.
Defendants further allege that if deeedent did in fact place his signature on said instrument, he was induced so to do
In physical appearance, the fifth cipher indisputably differs quite pronouncedly from the other ciphers in size, pen pressure, formation and color intensity. Evidently a blotter was applied immediately after it was made. The spacing between it and the cipher next to it is much greater than the spacing between any of the other ciphers. It is raised above the ruled line, and corresponds in alignment with the two ciphers which constitute the figures ‘ ‘ 500 ’ ’, after which there is a period and two other ciphers, which, defendants claim, was the true and original amount before it was changed by plaintiff from $500.00 to $500,000. The lower loops of the last two ciphers, denoting cents, drop below the ruled line, thereby differentiating them in alignment from the ciphers admittedly standing for dollars, while the alleged added cipher and the two ciphers expressing the amount in dollars, two spaces removed to the left, are in alignment; that is, all three are equidistant above the line. In other words, the two ciphers underscored, representing “00” cents (provided the amount is to be read $500.00), drop below the ruled line, whereas the two ciphers immediately to the left of said ciphers are in alignment with the figure “5” as in $500. The physical fact cannot be disputed that if a blinder is placed over the disputed cipher, which appears some distance to the right of the fourth cipher, the amount is $500.00. The point after the second cipher is undoubtedly a period.
The contentions of the executors made on appeal, briefly stated, as to the instrument itself are: (1) that the signature of the deceased was obtained by trick or device, or his signature was affixed to the instrument in blank and the plaintiff thereafter surreptitiously obtained the same and wrote all that appears thereon; (2) that the instrument as originally written provided for the payment of $500, and some time thereafter plaintiff fraudulently changed it to its present form; (3) that the large sum is accounted for on the theory that it was not possible, without creating telltale evidence of the erasure of the
period,
to raise it to any other or intermediate sum below $500,000; (4) that the words “thousand dollars”, and the insertion “one month” after the fifth cipher, and the changing of the year 1927 to 1924, and the whole of
It is a further allegation of the executors that whatever attention or courtesies were shown the colonel by her were done for the purpose of cajoling him by delusive flattery into the belief that his .welfare was a matter of deep concern to her; and that she made no suggestion to him that she intended to make a charge against him or his estate for any of the services to which she now lays claim. Section 337, subdivisions 1 and 2, and section 339, subdivision 1 of the Code of Civil Procedure, are pleaded as bars to plaintiff’s action. The foregoing sets forth in substance the issues as framed by the pleadings.
The jury returned a verdict in favor of plaintiff for the sum of $500,000, the full amount demanded, with interest at the rate of 7 per cent per annum from November 16, 1931. Judgment was ordered entered in plaintiff’s favor in accordance with the jury’s verdict, including the costs of trial. The amount of the judgment, including interest, now approximates $700,000. The defendants have appealed to this court from an order denying their motion for judgment notwithstanding the verdict of the jury, and from the judgment in favor of plaintiff and against the defendants. The appeal is presented on an engrossed bill of exceptions.
Many assignments of error are set forth by appellants as to certain instructions given on behalf of respondent, and the refusal to give a number of instructions requested by appellants on matters of law necessary for the guidance of the jury, also undue limitation of cross-examination of plaintiff’s chief witnesses, and as to numerous errors made in admitting evidence over the appellants’ objections, and excluding material evidence offered by appellants, greatly to their prejudice. Other rulings are complained of, but only such rulings as are of major importance will receive consideration.
The transaction in its inception, development and final consummation, as told by the witnesses for the respondent, presents an extraordinary proceeding. It is earnestly insisted by appellants that no reasonable deduction can be made from the testimony of respondent’s witnesses other than that respondent planned to acquire, with the cooperation of her associates, a large part of the decedent’s estate, the plan to
This rule has been announced in various forms by this and other courts. A concise statement of the rule where the relations between the parties were intimate and highly confidential, as here, and where the donor had no independent advice, and where the conveyance was without valuable consideration, or, it may be parenthetically added, in cases where the consideration is grossly inadequate, is announced as follows in
Mead
v.
Mead,
“Under such circumstances, the decisions hold uniformly that the transaction resulting in benefit to the trustee should be viewed with ‘the most scrutinizing jealousy’ and that the presumption of fraud attaches, and must be overcome by evidence that the deed is what it purports to be.” (Citing a long list of authorities.)
Paraphrasing the language used in
Cox
v.
Schnerr,
“In every transaction of this kind, one who holds such confidential relation will be presumed to have taken undue advantage of the trusting friend, unless it shall appear that
The rules of law as announced in the above cited eases and in many others of this state furnish the criteria or tests which must be applied to the issues of fiduciary and confidential relations which have been indisputably shown to have existed between respondent and decedent, Colonel Lankershim. Whether undue influence will be presumed or inferred from the relationship as described by the evidence is a matter which necessarily involved the proposition as to whether the instructions given by the court sufficiently covered the issue of undue influence, or were as full, direct and explicit on that issue as the appellants were entitled to have given in the circumstances of the case. We will later consider that question in our discussion of the sufficiency of the instructions.
We will next give consideration to the testimony of the four experts who were called to testify in the ease. Two were called as experts in handwriting and photographic art in its highest form of development, as a means of distinguishing the genuine from the counterfeit, and two were experts in the restoration of deleted and changed texts, one of whom made chemical analyses and other tests as to the kind and color of inks used in the production of the questioned document. All of them apparently brought to their aid all that science and chemical knowledge of the subject afforded. Albert S. Osborn, lecturer at the United States Bureau of Investigation at Washington, D. C., and a nationally recognized authority on handwriting and disputed documents, and James Clark Sellers, a lecturer at the University of Southern California, and an expert examiner and photographer of questioned documents, also a widely known authority in his special lines which embrace the subjects of inks, dyes, ink absorptions, and the determination of whether writings which cross creases made by the folding of papers were done after the instruments had been folded (as was contended by all the experts in the instant case) or were done before the creases were made by folding, and also offered as an expert as to alterations made in documents since originally written, were the two witnesses
The highlights of the opinion evidence given by the experts called by the appellants and selected by the court (none were called by respondent) may be briefly summarized as follows: The signature, J. B. Lankershim, was written before the body of the instrument was written; the shade of color of the ink is different in certain designated words from the shade of others; discs, or small particles of cakes caused by the drying of ink upon the pen are discernible in the lines of the first letter, initial “J”, in the signature, which do not appear elsewhere in the writing of respondent; the shade of color in the signature is different from the other writing; the instrument had been folded before the body of the document was written, as shown by the spreading of ink as it crosses the creases made by folding; in some instances the ink, where the writing crosses the fold, penetrates to the back of the instrument; a splash of ink is discernible on the right-side of the letter “H” where it crosses the fold line as the pen was caught in broken fibre made by the fold; the date line at the bottom, “Jan. 4, 1924”, was originally written 1927, and two figure fours were afterwards superimposed upon the numeral “7” in an effort to convert it into “4”; the word “me”, next in position to the letter “ J”, was given an upward slant to avoid writing into the letter “J”, which constitutes the
Other questions as to word and letter spacing, pen pressure, slanting of letters, arrested and cramped arm motion, differences as to the lightness and heaviness of ink fluids, and ink blurs, which may be readily observed by an inspection of the instrument, are discussed at great length. It is appellants’ contention, supported by expert testimony, that if decedent knowingly signed his name to the draft or cheek, it was written as a straight check for $500.00, and all that appears upon its face tending to transform it into a $500,000 obligation was written without the consent or knowledge of the decedent. The photographic copy of said instrument is herein reproduced. It shows generally the physical things which form the basis of the experts’ opinions, except as to a faint crease made by folding the paper a second time at a point midway between the crease running through the center .from top to bottom and the left edge of the document.
Appellants stress the point that the testimony of the experts is uncontradicted in the main, and in this particular their contention in some respects is borne out by physical facts appearing upon the face of the instrument which are brought directly to the attention of this court for scrutiny. Such evidence cannot be arbitrarily ignored or nullified by the jury’s verdict based upon the testimony of a single witness as to the execution of said instrument, if the testimony of said witness contains within itself such evidentiary weaknesses and abnormalities as to render it too unreasonable and inherently improbable to support the judgment, particularly in the light of the facts of this case, which, under all authority, must be jealously scrutinized.
It is pointed out that it is the duty of courts, in the examination of cases of the nature of the one before us, not only to inquire into the confidential relations existing between the parties involved, but also to carefully scrutinize the purposes and intent which likely motivated the party who would become excessively enriched by the accomplishment of a grossly uneven bargain. It is insisted with much force that in view of the relations which existed between the principals to the controversy and the nature and magnitude of the transaction, in the light of the evidence disclosed by the record, due respect to and regard of the laws which direct human conduct, particularly as applied to persons highly trained in business affairs, render the case made by respondent too weak and insubstantial to support a judgment grossly in excess of the value of any services respondent had the ability to perform or of which the decedent was in need.
The evidence upon which respondent relies to sustain her judgment, and which appellants most vigorously assail, was given by Miss Stella McKee, a close friend and companion of respondent for a number of years. Like Mrs. Herbert, she resided at Long Beach, where their relations had been very intimate for several years. She accompanied Mrs. Herbert to the lawyer’s office during pre-trial days and at the trial of the case, and, no doubt, counseled with her. Mrs. Herbert had lived in her apartments at Long Beach, and she was acquainted with Mrs. Herbert’s husband. The witness of equal importance to Miss McKee, and who was most active in promoting a relation of companionship and personal friendship between Mrs. Irene Herbert and Colonel Lankershim, was Mrs. Adele Blood Hope. After leaving Long Beach Mrs. Herbert occupied, at various times, apartments rented by Mrs. Hope. Mrs. Hope originally introduced and brought together Mrs. Herbert and Colonel Lankershim. Her activity in Mrs. Herbert’s interest appears from her own admissions. She after-wards met her on several occasions and under various circumstances at the Biltmore Hotel in the apartment of Colonel Lankershim.
Miss McKee, at the time of trial, testified that she was then employed as a cashier in the public utilities department at Long Beach, had formerly been employed by a Long Beach
In her deposition, taken some five months before she testified in the case, she stated that she did not attend on the day set, as her duties at the bank would not admit of her attendance. Her attention being called to the fact that she had not been employed at the bank since the month of July preceding, she admitted error, but was unable to recall the circumstances which prevented her attendance on the seventh. She did arrive from Long Beach on the evening of the ninth of October. She took dinner in Mrs. Herbert’s room, Colonel Lankershim being present, and remained overnight with Mrs. Herbert. Upon arising in the morning Mrs. Herbert prepared breakfast for the three. Between 9:30 and 10 o’clock she and Mrs. Herbert entered Colonel Lankershim’s apartments, which were across the hall from Mrs. Herbert’s room. Mrs. Herbert carried a tray containing muffins, some fruit, coffee, tea, sugar and cream. Evidently their entry into the colonel’s apartment was an unexpected visit. The colonel was lying on his bed and was attired in his dressing robe and had on slippers.
After breakfast the colonel complained that the masseur employed to attend him had not arrived. He was disappointed and annoyed that the masseur was not there to perform a duty he was hired to perform. He said that Irene had never failed him. Mrs. Herbert then suggested that she do something for him and she began to rub his arms, the back of his head and neck, and to put cold compresses over his eyes. In her deposition Miss McKee had averred that the colonel complained of feeling tired and said his eyes were bothering him. She contradicted this statement at the trial and testified that he said nothing about his eyes bothering him or feeling tired, but when they entered he said he was feeling fine.
According to the witness he was lavishly profuse in his praise of Mrs. Herbert. He complimented her for the perfect manner in which she had cooked the prunes, and the muffins and the coffee were just to his liking. He said, “Irene, you know how to cook meals to suit me.” He further said she was always thinking of the things he liked and preparing them as he liked them; that she did more for him than anybody in the world, even his own children; all the little things she did meant very much to him; that he was never disappointed in Irene; she had an understanding mind and knew what he liked and when he wanted a thing done she did it. He spoke of her kindness and thoughtfulness of him, and how necessary she was to him. When she had finished rubbing his arm and head, he said: “Now, I am going to make good the promise I made you. I am going to pay you well for your services.” He arose from his bed and went to a dresser, took out a piece of paper, and said: “I want you to write what I am going to dictate.”
The witness then recalled that he dictated “something like this”. She then repeated
verbatim,
even as to the order and arrangement of each word and sentence, the verbage appearing in the body of the written instrument which she had heard dictated but once and had not seen or heard discussed by anyone during a period of nearly six years. She and Mrs. Herbert had lived within that period in the same apartments for some time and at one time were interested in a common business enterprise. They had resided within a half block of
The witness testified that it was an unusual instrument in form, such as she had never seen before in her experience as a bank employee, and she was unable to classify it. She testified that the colonel requested of her and Mrs. Herbert that they should not mention the transaction to anyone. This commitment of secrecy was not observed by the colonel himself, if the testimony of Miss Ruth Belle Allen, daughter of Mrs. Isabel Clark and an intimate friend of Mrs. Herbert, is to be accepted, as she testified that she met the colonel in Mrs. Herbert’s apartment on the afternoon of October 10, 1927, and he was smiling and said to the witness, Mrs. or Miss Ruth Belle Allen, “I told you I was going to pay Mrs. Herbert. I have given her a note for half a million dollars, payable a month after my death. ’ ’ She had known the colonel not longer than seven weeks. He further cautioned: “I don’t want you to mention this to anyone, Miss Allen.” He called her Ruth. She said she would not mention the note. He said, “I wouldn’t tell you, but I can depend on you not to tell this where people will discuss it.” He did not say why he did not want her to tell. Mrs. Herbert did not say anything, but “just smiled”. The witness claimed that she did tell her mother and discussed the matter with Mrs. Herbert.
Returning to the story of the production of said instrument as related by Miss McKee, appellants seriously contend with good reasons that the reproduction, word perfect, of an instrument which is peculiar in its phraseology, and which the witness heard read but once and which she read herself but once, and which had not been seen or discussed by her or by anyone else in her hearing, after the lapse of a period of more than five years is such a wide departure from the usual and common experience as to the operations of the mental faculties as to partake of the miraculous in mnemonic feats and has a strong tendency to bring distrust upon the testimony of the person claiming the power to perform such a feat, tested by the rule of reasonable probabilities, taking due note of all the
The witness, further describing the transaction, said that the colonel was lying on the bed while he was dictating, and respondent was sitting in a rocking chair, holding the paper on her lap as she wrote the. dictation. The witness from her position said she could not see what Mrs. Herbert was writing. When the dictation was finished Mrs. Herbert read it over and said: “I forgot to put in the ‘one month’.” He said, “Insert it after the $500,000.” She read it to him, and handed the note to him. He looked at it and got up out of bed and went over to the dresser and signed the note. He was in bed when she handed it to him after she had written it. The witness said he appeared to have read it. When he reached the dresser he pushed the cover back and began to use his arm as if writing. He had a pen in his hand which lie got from Irene Herbert. The witness said she could not say it was a different pen or the same one used by Mrs. Herbert. She did not notice what was done with the pen. He handed the note to Irene. She took it, looked at it and said: ‘ ‘ Colonel Lankershim, I thank you.” The colonel went back to bed. Mrs. Herbert passed the note to her, she took it in her hand, read it, and returned it to Mrs. Herbert. She said she recognized the instrument dated October 10,1927, as the same paper handed to her by Mrs. Herbert five years previously.
She further testified that the colonel told Mrs. Herbert “to take it [the paper] to the bank and keep it there until after his death, and then to take it up to his attorney, Mr. Macdonald, and he would see that she received the money.” The witness did not know what Mrs. Herbert did with the note after the colonel gave the above instructions. It is certain that she did not follow his instructions in a very important particular. After Mrs. Herbert handed the note to the witness she left the apartment alone.
She first met the colonel in 1924, when she visited his apartment at the Biltmore Hotel upon the invitation of Mrs. Herbert. The witness recited the months from memory on which she had met the colonel since 1924. Most all of the five or six meetings were had upon invitation of Mrs. Herbert at the Biltmore Hotel. She took meals with Mrs. Herbert in the colonel’s apartments and attended places of amusement as his guest. Upon the occasions when she was at his rooms Mrs. Herbert took to his rooms custard, vegetable soup or lamb
During the early stages of Miss McKee’s testimony she described with meticulous detail the dictation as given by the colonel. She made conflicting statements both as to the year and month that the services were to be reckoned from, but finally said she remembered that the true date named as the commencement of service was January, 1924. The body of the instrument as written was reproduced word perfect, even to the order of its language. She said that in writing the instrument Mrs. Herbert omitted from the dictation the words “one month” next after $500,000, and her memory was that she discovered the omission while in the midst of writing the instrument. At other times she stated that Mrs. Herbert discovered the omission after she had finished writing the instrument. The time of discovery was left by the witness in a state of confusion.
She gave conflicting testimony as to whether Mrs. Herbert selected the place where the omission should be inserted without instructions from the colonel, or whether the place of insertion was made as dictated by him. In a part of her testimony she said that the colonel with much exactness instructed Mrs. Herbert to insert the omitted words immediately after “$500,000” as expressed in figures, and in other parts she said that he gave her no instructions as to the place where the insertion should be made, and that Mrs. Herbert inserted the omitted words without any instructions from anyone, as “she knew where to put it”.
Miss McKee also testified as to paper, pen and ink being in the room, but did hot see a blotter in the hands of Mrs. Herbert, on the table or elsewhere in the room. A caret indicates the place where the omitted words were inserted, which clearly
Whether or not the instrument had been folded before Mrs. Herbert had written the alleged dictation became a matter of inquiry. The witness testified that she held the instrument in her hand and read it. She was then asked: “Q. Had it been folded at that time? A. It had not. Q. Perfectly flat? A. It was.” The witness then returned it to Mrs. Herbert and said she didn’t know what respondent did with it. Under examination by appellants, she said that she saw “some printed matter” on it but she did not “pay any
attention
to the printed matter”. The following question was then put to her: “Q. You did not read the printed matter on it then, did you? A. ‘For value received,’ I remember seeing that. Q. The Colonel did not dictate ‘for value received’, did he? A. It was printed on it. The Colonel did not dictate ‘for value received’. I don’t recall that Mrs. Herbert read ‘for value received’ when she read the contents of the note.
The instrument shows a crease through the center. The experts point out that the spreading of ink is discernible in the trough made by folding in several places. The writing in crossing the trough loosened the fibre or sizing of the paper and left it much in the condition of blotting paper. It is pointed out that the capital letter'“H” near the top of the paper, being the first letter of respondent’s surname, and the letter “m” in “me”, appearing near the signature “ J. B. Lankershim”, prove that Mrs. Herbert’s writing was done across a distinct crease made by folding the instrument. It is also claimed that the ink penetrated through the paper in places and is discernible in the photograph taken of the back of the instrument. Several printed words not mentioned by Miss McKee and which were not stricken out by Mrs. Herbert appear upon the face of the instrument. “Los Angeles, Cal.,” the first words of the instrument, and the word “dollars”, well down in the instrument, and the last five words of the “value received” clause, to wit, “and charge to account of”, are printed words not referred to by the witness. The words “value received”, which she had a distinct recollection of observing, were of great importance to the respondent’s case. . The witness testified that she had not been aided by anything she had heard or seen since October 10, 1927, and her testimony was based solely on her memory as of that date. The witness had no such accuracy of memory as to any other matter printed on said note. She was unable to recall anything that Mrs. Herbert wrote to her when she invited her to the birthday dinner, or anything she said in her reply or in explanation as to why she was three days delayed. The other unusual trait of memory exhibited was her ability to name the several months in which she had heard the colonel speak in complimentary terms of Mrs. Herbert. In a number of other matters her memory was faulty.
The witness next in importance to Miss McKee was Mrs. Adele Blood Hope, also known as Miss Blood, who identified herself as “formerly known as Adele Blood, the actress”, and as having played many engagements in Los Angeles and particularly the character of “Everywoman” in the play known as “ Every woman ”. She was forty-seven years of age, a native and resident of California, but had been residing
The witness stated that in 1924 she rented a flat for occupancy by her mother at West Eighth and Garland Streets. Mrs. Herbert stayed at the apartments much of the time when Miss Blood was away, and also when she was there. Mrs. Herbert and Miss Blood’s mother lived in the same flat both at Eighth Street, Los Angeles, and at Long Beach. Mrs. Herbert occupied the witness’ room many times when the witness was not in Los Angeles. The colonel was then living at the Biltmore Hotel. Miss Blood was at the Biltmore Hotel from October, 1925, to the spring of 1926. She testified that Mrs. Herbert was always at the Biltmore apartments when she called on the colonel during her stay from October, 1925, to the spring of 1926. She saw Mrs. Herbert brush his hair and bring him a wet towel so he could wash his face. She would order his breakfast, and nearly always supplement it with something she brought with her. She saw her bring him his glasses and wipe them, and give him medicine, massage his neck and head. She sometimes put a light on his face for a nervous trouble he had on the side of his face. She had seen her dry clean his ties, mend his underwear and socks; help him put on his slippers and dressing gown; clean spots from the front of his clothing; order his meals; arrange for theater tickets and accompany him to the theaters and see that he was comfortable; assist him in the taxi and see that the windows were closed, which often made it uncomfortably close in going to theaters; saw her manicure his nails.
The colonel left the Engstrum Apartments some three weeks after the transaction of October 10th, not later than the first of the following month, as related by Miss McKee, leaving Mrs. Herbert occupying a room on another floor, and returned to the Biltmore Hotel.
On cross-examination the witness testified that her first meeting with Mrs. Herbert was at Great Neck, Long Island, but she did not give the year. She never knew that she had any occupation. She said on three or four occasions, or possibly a half dozen, she had prepared meals for the colonel at his Biltmore apartments in 1924. The evidence by all other witnesses was to the effect that meals were served at his rooms by the hotel at his expense for his visitors, and that Mrs. Herbert brought with her on occasions soups or mutton stew or some delicacy which he specially fancied as supplementary to the meals ordered sent to his rooms. In
Four members of the Clark family, mother, father, daughter and son were witnesses in the case. The mother and daughter and son were called by plaintiff, and the father was called by the defendants. All were personal friends of Mrs. Herbert. Mrs. Isabel H. Clark, mother of Miss Ruth Belle Allen and Frank D. Allen, and wife of Ivy C. Clark, was the first of the family called to the stand. She had known Mrs. Herbert seven years. She first met the colonel when he was on his bed, sick, at the Biltmore. She was with her husband. Mrs. Herbert met them in the hotel lobby and all went to his room and she introduced them to the colonel. They stayed only a few minutes. Mrs. Clark and her husband went back after a short time, perhaps a month thereafter. He was then up. He had told Mrs. Clark on her first visit to come back and take lunch with him. Mr. and Mrs. Clark on their second visit stayed about two hours. Mrs. Blood and Mrs. Herbert were there. They took lunch in the colonel’s suite. The witness said that the colonel spoke to her about Mrs. Herbert’s kindness and faithfulness to him. She helped him to put on his shoes or slippers. She poured his tea. He was a great lover of tea. Before they left, Mrs. Herbert had to take him to his bedroom. Three or four months after she first met him, Mrs. Sidney Chaplin invited her to lunch. Four sons and Mr. and Mrs. Clark were all guests. The witness said whenever she met him he always spoke of Mrs. Herbert’s loyalty to him. She said they visited him on other occasions at the Biltmore, and took lunch in the dining room at the Bngstrum. The colonel and Mrs. Herbert visited the Clark’s home in 1926 or 1927 and had meals. Mrs. Herbert made the tea and cooked at their home the spinach and chicken. She prepared
Miss Ruth Belle Allen, a married woman who retained her maiden name, is a daughter of Mrs. Isabel H. Clark. She met the colonel for the first time the latter part of August, 1927, less than two months before the instrument in question is alleged to have been executed. He came with Mrs. Herbert to the hospital two or three times where she was interned for a short time on account of illness. The colonel told her that he had recently returned from Paris. On September 8, Mrs. Herbert and the colonel came to tell her goodbye, as they were leaving for Vancouver on a trip. The colonel said, “When we get back, come and stay with Mrs. Herbert and we will go somewhere.” When they came back Mrs. Herbert called her and she went to Mrs. Herbert’s apartment opposite the colonel’s at the Engstrum. On October 2d, the three went by train to Palm Springs. She said she remembered once or twice having heard him say he was going to his attorney’s office. They went to shows every night. He suggested going and he bought the tickets. They never stayed through a single picture. He always got tired and wanted to go home. He didn’t like the show and said he didn’t want to stay any longer. Mrs. Herbert usually prepared his meals in her apartment. She would assist him in dressing and help put on his coat and hand him his hat and cane. After he got in bed she would go in and say good night to him. She prepared
On cross-examination she stated that she was thirty years of age and that she had been married, but did not give her married name. She had known Mrs. Herbert intimately since 1925 and she was still very friendly with her. She was visiting Mrs. Herbert and had been for several days before she went with her and the colonel to Palm Springs. She saw Hr. Foster at the Bngstrum. He usually came to the
When the colonel requested the witness not to repeat to anyone that he had given Mrs. Herbert a note for a half-million dollars she promised him she would not. She did tell her mother, Mrs. Isabel IT. Clark, and Mrs. Herbert three years later, to wit, 1930. Then for the first time she discussed the matter with Mrs. Herbert. The fact that she discussed it was brought out on cross-examination, and the result was that it seriously impaired her credibility as a witness. Her statement made in justification for disclosing the information which she accepted in confidence, as told by her from the witness chair in November, 1933, and was made a matter of record by her sworn statement dated August 7, 1930, which was prepared to meet a future contingency, cannot easily be harmonized with a disinterested state of mind prompted solely by a desire that impartial justice be done.
According to the witness, Mrs. Herbert was present on the afternoon of October 10, 1927, at the time the colonel told the witness that he had given her [Mrs. Herbert] “a note for a half-million dollars payable a month after death”, a subject which had never been mentioned by either until August 7, 1930. Her testimony in explanation of her action was that she was going East and did not think she would ever come back to California to live again. She asked Mrs. Herbert
“8-7-30 Ruth B. Allen.
“Subscribed and sworn to before me, a Notary Public in and for Los Angeles County, California.
“J. W. Rat,
“Notary Public.
“My Commission Expires August 2nd, 1932.”
The witness had never seen the disputed document, but on cross-examination she testified that the colonel said he was going to
pay
her [Mrs. Herbert] for her
loving kindness and protection.
She also remembered he told her that the note was
“payable one month
after death.” This was after the lapse of three years. This
language
is embodied in the instrument. The inference to be drawn from the above sworn statement is that she, Miss Allen,
knew
that he signed a “promissory note”, not that she was told so by him. Indeed, taken by itself, it is subject to the inference that she saw bim sign it. She then avers that he “willingly, agreeably
Louis A. Duni, a private investigator and a former deputy United States marshal, and afterward an investigator in the district attorney’s office at Los Angeles, called by appellants, testified that he visited Miss Ruth B. Allen at her home in June, 1933, and she, in the presence of her stepfather, Ivy C. Clark, and W. W. Wallace, who accompanied him, admitted that she wrote said statement at the dictation of Mrs. Herbert. Mr. Wallace, an attorney at law and connected with the law offices of J. Wiseman Macdonald, corroborated this testimony.
Frank D. Allen, a son of Mrs. Isabel H. Clark' and brother of Ruth Belle Allen, testified that he had known Mrs. Herbert about nine years, and Colonel Lankershim since 1925. He first met him at Mrs. Frances Blood’s house, corner of Garland and Eighth Streets. The colonel went to Europe every year in the late spring. He called on him at the Engstrum and at the Biltmore. On his first visit to the colonel’s rooms, Mrs. Chaplin was with him. Sally Pepper and Mrs. Herbert were there. The next visit was made two weeks later. Mrs. Chaplin was with him again on this visit. Mrs. Herbert and three or four other women were in his apartment. He would, when downtown, often run in to see the colonel and say “hello”. He visited him ten or twelve times when he was at the Biltmore. In August, 1927, he was in his room about two hours, trying to sell him a piece of property. He was not successful. No one else was present. Mrs.’ Herbert had gone to the Engstrum to make a little soup. The colonel said he did not know what he would do without her; that
Mrs. Sarah L. Barrett, a witness for plaintiff, had known Mrs. Herbert since 1924, at which time she came to her flat on Garland and Eighth Streets and lived with Adele Blood and her mother. They occupied the flat three or four years, dating from the fall of 1924. She saw Mrs. Herbert at Mrs. Blood’s flat every day in 1924, 1925 and 1926, except when she went to the beach; saw Colonel Lankershim at Mrs. Blood’s flat at least three times a week. Sometimes a chauffeur brought him, and sometimes Mrs. Herbert brought him. Visited him three or four times at the Biltmore during 1924-1927. Went with Mrs. Herbert to the Biltmore in 1925 to help Mrs. Herbert carry some soup and vegetables and prunes. The witness saw Mrs. Hope prepare the articles in her kitchen. After arriving at the Biltmore Mrs. Herbert gave the colonel some sort of medicine. He was sitting in a chair with a blanket wrapped around him. At Mrs. Blood’s flat on one occasion, before departing for the beach, she heard
The plaintiff called as a witness H. Gordon Bayliss, a Los Angeles physician. He had previously known Colonel Lanker-shim, but met Mrs. Herbert for the first time in 1927 on a steamer with Colonel Lankershim going from Seattle to Vancouver. The doctor was taking Senator Clark’s sister to Victoria. Her nurse was accompanying her. The colonel and the doctor were thrown in conversation and Mrs. Herbert came up and had in her hand a pocketbook or purse contain
Dr. George L. Cole was called by someone to visit the colonel at his apartments at the Biltmore on February 23, 1927. Mrs. Herbert was in the apartment when he called. The doctor prescribed some kind of a tablet for the colonel to take and suggested that he have a nurse. The colonel replied that Mrs. Herbert would take care of him.
Ethel Anspaker, a resident of Long Beach, had known Mrs. Herbert some eighteen years. The colonel and Mrs. Herbert came to her home in an automobile several times in 1926. She had a family of six children living with her. At one time he bought a set of dishes and Hallowe’en candy for the children. Mrs. Herbert helped him up to the doorsteps. He had tea. The witness made it and Mrs. Herbert served it. The latter saw that he was made comfortable. The colonel said the witness was very fortunate to have the children, as when she reached old age and needed help and assistance it would be given through love; that he was “old and ill and had to employ people to take care of him, but I would be compensated through raising a family”.
Mrs. Irene Herbert, being a party to an action upon a claim against an estate, was barred by virtue of the provisions of section 1830, subdivision 3 of the Code of Civil
She was sworn, however, as a witness in her own behalf and testified that she was then forty-three years of age and knew Colonel Lankershim in his lifetime. At this point an objection to her testifying on statutory grounds was made and overruled. She was shown the disputed document and identified it as the one set forth in the pleadings. She also testified that she presented a claim on the instrument for the sum of $500,000 and that it had not been paid. The witness said she read the prepared claim before she presented it but she did not know whether she verified the complaint or not. Her counsel offered to stipulate that she did, but opposing counsel refused to accept the stipulation, stating that he preferred to have the witness testify on the subject. The above was the extent of her testimony in chief. She was recalled at the close of defendants’ case on rebuttal. The experts had testified that the paper upon which the note was written had been folded before Mrs. Herbert wrote any part of the body of the instrument. This, it was contended, was made physically manifest by ink penetrations and spreading of ink as the pen crossed the crease made by the fold. No expert who testified on the subject had any doubt as to the physical fact. Miss McKee had early testified that the note was perfectly flat and had not been folded when she handled it. Clark Sellers testified that shortly before the trial day and at a time when the experts were making scientific tests of the genuineness of the document in the offices of plaintiff’s counsel, Lieutenant of Police H. C. Nutt, Mrs. Herbert and Miss McKee being present, plaintiff was asked by Clark Sellers if the fold which extended from the top to the bottom of the document was on the document when she wrote it and she said the document was flat, unfolded, and she folded it and put the crease in it after she had written the body of the document. Lieutenant H. C. Nutt, supervisor of the crime investigation laboratory and a specialist in the investigation of questioned documents, who was at the time examining the document, corroborated Clark Sellers. He further added that Mrs. Herbert, after stating that the note was flat and smooth when the colonel, handed it to her, declared that he admonished her to “take good care of this note because it was valuable”. She further said: “I placed
On rebuttal Mrs. Herbert was asked if she ever carried the note in her purse and she answered that she had for several days at a time and that it was not in any kind of a covering folder or envelope at any time. She was then asked if Mr. Sellers asked her if it had been folded before she wrote on it and she answered “No.” She said the subject of folding the note was not discussed. Miss McKee, also a rebuttal witness, testified that the fold in the center of the paper was not mentioned by anyone during-the two periods at which she was present during the investigation made testing the genuineness of the document. Mrs. Herbert did not deny or affirm the controverted question as to whether the paper had been folded before she wrote the alleged dictation. She explained other matters in connection with the physical appearance of the note, but she did not deny the claim that the paper had been folded before it was written upon by her. If carried in a purse without covering or protection of any kind through a period of four years it must have become at least badly crumpled and wrinkled at the end of that period.
The foregoing summary of the testimony states the full strength of plaintiff’s case as made out by the parol evidence of the witnesses offered by her. The documentary evidence, particularly photographic copies of the questioned document, is now before the court for inspection in form and size of the original and also in enlarged sizes, together with exemplars of decedent’s handwriting for purposes of illustration in other matters pertinent to the tona fides of said instrument. The witnesses used as handwriting experts and also to make chemical analyses of the ink used in producing the instrument (two of whom were called by the defense and two others were named by the court) gave adverse testimony as to the integrity of the instrument.
Appellants contend that a conspiracy was conceived by Adele Blood Hope and Mrs. Herbert, actively aided and abetted by Stella McKee, Mrs. Isabel H. Clark, Miss Ruth
Mr. Macdonald, his attorney, adviser, and the manager of the Lankershim Estate Corporation, when called upon to prepare decedent’s last will and testament, had not the faintest hint that an outstanding claim in the sum of $500,000 evidenced in the manner shown by the evidence was to be uncovered for the first time in the settlement of the estate. It is scarcely conceivable that a successful business man of wide and varied experience, in the circumstances of the case presented, would leave his executor and business manager in total ignorance as to the bona fides of a claim of such proportions without realizing that it would beyond doubt, from the nature of the transaction, meet with rejection by the person whom he had appointed by his testamentary act to pass upon it. It certainly would seem that the decedent would have adopted similar safeguards against the miscarriage of his desires with respect to Mrs. Herbert- which he adopted with respect to his own children if he intended she should participate in his estate, particularly if the imputation of Stella McKee, Miss Blood, Mrs. Clark and Miss Allen to the effect that he placed Mrs. Herbert as having gained favor over his wife, son and daughter, is to be credited.
By the words of the colonel himself as related by the witness called to establish the execution of the questioned document—Miss McKee—corroborated by witness Prank Í). Allen, the colonel had in his employ at the very time of the execution of said instrument and had had for several years prior thereto, Dr. Poster, a trained masseur and attendant, who personally served him to the end of his days. Miss McKee said that on the morning that she and Mrs. Herbert entered the colonel’s room he appeared disappointed that Dr. Poster was tardy and he was highly displeased that the person whom he
paid
to give him treatments had not yet made his appearance. Prank D. Allen, another of plaintiff’s witnesses, gave
It cannot be successfully contended that Mrs. Herbert rendered requested services under any express agreement of employment. She had no fixed hours of employment or definite duties, and the evidence does not satisfactorily support a finding or an inference that she conducted herself or regarded herself as a hired employee or acted in the capacity of a nurse, masseur, or paid companion. During the period for which compensation is claimed, 192A-1927, both inclusive, Colonel Lankershim spent practically one-half the time in company with his wife and daughter in Europe, and Mrs. Herbert’s witnesses do not claim that she was in his company except upon the occasions stated by the witnesses testifying in her behalf while he was living at the Biltmore Hotel. Bills for theater tickets, dinners, taxi charges and for other amusements and entertainment during a period of some three months prior to October 10, 1927, show beyond question that the colonel was the host for the pleasure of his guests, who were friends and companions of the plaintiff, on numerous occasions. Besides, he paid all of Mrs. Herbert’s expenses while she was living at the Engstrum, and also her expenses for a trip to New York where she visited with her friend, Miss Blood, and to Vancouver, B. C., which latter trip was completed but a few days before October 10, 1927. Colonel Lankershim was a generous host, and no doubt paid many hundreds of dollars, which do not appear in evidence, for the pleasure and amusement of his women guests during the period embraced within the inquiry. According to the uncontradicted testimony of H. 0. Moulton, bookkeeper for the Lankershim Estate, he carried to him during his short stay at the Engstrum, occupying apartments opposite Mrs. Herbert’s room, pocket money, the occasions and amounts he did not recall, but his usual amount for such purposes was from $200 to $500. The foregoing is a full resume of all the oral evidence presented by plaintiff and states the full strength of her case.
It is the contention of appellants that the evidence offered to prove respondent's case is paténtly insubstantial and is too inherently improbable to entitle it to be used as the basis of a judgment in an important cause. It is further urged that
There can be no doubt that Colonel Lankershim was afflicted during the closing years of his life with atrophy or degeneration of the optic nerve, a progressive disease which often comes with old age. Dr. George H. Kress, an eye specialist, began treating him November 1, 1927. His testimony was that when he examined his right eye on that day he was not able to distinguish a raised finger removed more than one foot from his face. The visual capacity of his left eye was reduced from one hundred per cent, the standard, to between thirty-five and forty per cent. That was the extent to which he could see into distance. With his right eye he could see nothing in distance. The specialist said he always came with an attendant, and his gait was that of a- man who did not see well, and he was guided by an assistant. He told the doctor that when he was in Paris in 1927, a few months prior to October 10, 1927, he was informed that he had cataracts and his vision was poor. He said he could not see. Examinations of his eyes showed a disintegrating condition that foretold approaching blindness. In the opinion of the specialist, Colonel Lankershim was not able to read the disputed document on October 10, 1927, with the naked eye. With fitted glasses he would not have been able to read the entire document at one reading operation. Notwithstanding the opinion of Miss McKee, Miss Blood, and one or two others who testified that his eyesight was good, the fact is that practically every witness for the plaintiff, including Mrs. Herbert herself, in enumerating the compensatory services which she performed, included as an item of service "reading ’ ’ to the colonel. His bookkeeper, Mr. Moulton, testified that the colonel’s eyesight began to signally fail in the latter part of 1926. He used a
Miss Tuft’s office adjoined the private office occupied by the colonel, with a connecting door. She had observed the condition of the colonel’s eyesight since 1920. In 1926 it failed very much. He had difficulty in reading and had the witness purchase the magnifying glass above mentioned. The witness frequently mailed letters written by him to his wife and daughter. Beginning with 1925, all of the colonel’s letters from his wife and daughter were read to him by his secretaries. The witness was shown an unsigned letter written from Vichy and addressed to Mrs. Herbert, in care of Mrs. Adele Blood, the greater portion of which was typed but to which a few lines were added in longhand which she said may have been written by the colonel, but if it was written by him he probably had some kind of assistance such as a high-power glass. The letter briefly referred to his return trip and to other matters which sufficiently identify it as being a communication from the colonel to Mrs. Herbert. The written portion of the letter makes inquiry of the address of a lady living on Riverside Drive, and also the address of a lady
Fred M. Foster, the masseur and attendant, often referred to in the ease as Dr. Foster, testified that he had been in the colonel’s employ since 1920 to the time of his last illness; he gave him a treatment every morning between 6 and 7 o ’clock, which consisted of massage and bath; gave him bodily treatments for the bowels and bladder not necessary to relate, and he applied treatment to his eyes and otherwise administered to his needs. He often took breakfast and stayed until noon or later; looked after his clothes, sent his suits to the cleaners and his linen to the laundry, and kept his wardrobe in order; ran errands, made purchases of wearing apparel, read the newspapers to him and drove his automobile quite frequently for him; in 1927 read to him practically every morning and evening and often accompanied him to his office; from 1924 to 1927 the colonel was quite often ill and sometimes remained in bed for a few days. His eyes went bad in the fall of 1927. The witness moved the colonel from the Biltmore to the Engstrum in September, 1927, and moved him out in November, 1927. He did not remember ever seeing Mr§. Herbert in the colonel’s apartment at the Biltmore. He saw
The appellants offered to prove, after an adverse ruling by the court, that on the forenoon of November 4, 1927, at the time that Dr. Poster was moving the colonel’s effects from the Engstrum back to the Biltmore Hotel, Mrs. Plerbert said to Poster: “I have got free of the doddering old fool; I have kicked him out.” An objection was sustained as to the offer on the ground that the evidence was immaterial.
The record is replete with declarations favorable to plaintiff, admitted over appellants’ objections that said declarations were hearsay and self-serving. The excluded declaration was made three weeks after the date of the disputed document. According to her own claim, her services were to continue to January 1, 1928. It was a declaration which, if believed, was inconsistent with and contradictory of plaintiff’s case, which was largely founded upon the “loving kindness and protection” clause of said document. It was also admissible as tending to impeach the testimony of certain witnesses as to the tender care and vigilant service Mrs. Herbert rendered in the colonel’s behalf. It was also material matter for consideration in the determination of whether a person who had received a princely gift, but a short time before would thus angrily turn against her benefactor. There is no doubt as to its materiality and its exclusion constituted prejudicial error.
There is no question but that a very wide latitude should be given as to the introduction of evidence in cases involving issues of the kind presented in this proceeding. Obviously, the nature of the transaction justifies the indulgence of considerable liberality in the admission of any evidence which would shed light on the relation existing between
Mrs. Mary C. Hawkins was the switch-board operator and clerk at the Engstrum Apartments in 1927. Her duties were bookkeeping, attending to the wants of the guests, seeing them as they came in and went out, and taking care of their business. Everyone who came in or went out passed by her. Mrs. Herbert came to the Engstrum Apartments in the middle of August, 1927. She occupied a room on the first floor. Colonel Lankershim came about September 1, 1927, and occupied a double apartment on the fourth floor. The day after he came, Mrs. Herbert moved to a room directly opposite the colonel's. She stayed there until the middle of October and said she wanted to be moved away from that apartment. She was changed to the second floor and stayed there until the colonel moved out, which was about the first of November. All items of Mrs. Herbert’s rent were charged to and paid by Colonel Lankershim. When she testified that Mrs. Herbert asked that she be transferred from her room opposite Colonel Lankershim’s, she was asked by counsel for appellant this question: “Did she say why?” An objection was made to the question on the ground that it was irrelevant, incompetent, immaterial and hearsay. Counsel for appellants then made an offer of proof that, if the witness had been permitted to answer, her answer would have been as follows: “Mrs. Herbert, on October 15, 1927 came to me at the desk and said she would have to make a change, that the colonel was coming into her room in his bathrobe and embarrassing her before her guests and annoying her at all times and she could not stand it any longer and that she wanted to be removed away and wanted a room in another part of the building.” The court sustained the objection, both as to the question and offer of proof. This ruling was prejudicial error. In the first place, it was a declaration against the whole theory of plaintiff's case and it was admissible as impeachment of the testimony as to the kind and sympathetic feelings which plaintiff had for the colonel. This was but five days after the tenth of October transaction is claimed to have taken place. It was entirely proper for the jury to take into consideration, if they believed the witness, whether it was at all probable that Mrs. Herbert would have made such a statement had she in fact been made the recent recipient of a $500,000
Appellants offered evidence which was sustained on the objection of plaintiff for the purpose of fixing the reasonable value of the alleged services performed by plaintiff, in the event the jury should find that she was entitled to compensation, but the court, after receiving some evidence on the question finally struck out all the evidence bearing on the subject, holding that it was not an issue in the case, and so instructed the jury. We are of the view that such testimony was properly received in the first instance and that it was^ error to strike it from the record. We are of the view, as between section 1605 and section 1606 of the Civil Code, that the latter section is more applicable to the facts of the ease (eliminating, of course, the issues of fraud and confidential relations and undue influence) than is the former.
We now come to review the ■ evidence of Miss Doria C. Lankershim, daughter of the decedent, Colonel Lankershim. From 1920 to 1931, she lived in Paris with her mother and Doria’s adopted daughter. Her mother died in Paris in 1928. Her father visited her and her mother every year since 1924. He remained with them from three to four months. She was with him every day, making visits outside of Paris and especially at Vichy, which is a health resort where bathing in medicinal waters is the main treatment for the ailing. They often attended theaters and other places of entertainment and amusement in and near the city. The mother, who was practically an invalid, would go when she was able. They rode
“Jack comes in to lunch with me once every week at least and we talk over business matters in which he is very well posted. I wrote in one of my other letters about the dinner that he gave out at the Ranch House that was very nice; and some of our old friends were there that we used to know at The Lankershim.”
He mentioned the fact that when at Palm Springs he visited the town of Indio where he met an old friend and described the town and spoke of the orange and grapefruit industry, and its possibilities. On September 30, 1927, he referred to a birthday party given to Jack at the ranch and described the meal served and the decorations in flowers from the pergola on the ranch and said they were beautiful. He spoke of the ranch house having been remodeled and refurnished. He said Jack was looking well, was attending strictly to business and he found everything in very good business condition when he came back and he was well satisfied. He made mention that Jack was coming to have lunch with him at the Biltmore and he was looking forward to a very pleasant meeting with him. He said Jack had promised to write to her and her mother. He stated that he received a letter from
In a letter dated September 7, 1927, he wrote of current matters generally and particularly of his affairs and contemplated realty improvements on a large scale. Recently he had visited the ranch with Mr. Macdonald, and Jack showed them everything about the large properties. In fact he said: “Jack takes a great deal of interest in everything and all the matters he undertakes are very well taken care of. It is certainly a great pleasure to me to see how well he attended to business when I was away. He wants to be remembered to you.”
A letter dated March 12, 1927, evidently written in answer to one he had received from his daughter, mailed at Monte Carlo, acknowledged the receipt of photographs of the baby and spoke of her pleasing appearance and said he was glad they were so happy. He spoke of having mailed a postal at
Inasmuch as the evidence is vigorously attacked as being self-contradictory and too inherently weak and improbable to sustain the verdict and judgment, we will give first consideration to that issue. In doing so we will make such deductions from the evidence as are warranted by the facts of the case or which are in accord with the common experience and propensities of mankind, the course of business and the laws which ordinarily direct human action. It cannot be disputed that the attacks made upon the evidence are based on substantial grounds, and a very serious question is presented as to whether, upon analysis, the evidence may be said, as a matter of law, to be sufficient to support the judgment. The appellants are entitled to have their reasons supporting their objections stated. We will, therefore, refer to a few of the grounds set forth and also the reasoning of appellants from established premises which seriously challenge the correctness of the jury’s implied findings as to the sufficiency of the evidence to support its verdict.
The letters above reviewed, some, addressed to the daughter and others to his wife, indulge in comment as to current matters, but only such parts as bear upon his love and concern for the members of his family are set forth. His recorded words, as shown in letters written near October 10, 1927, compared with his brief notes to Mrs. Herbert, completely refute the insinuation thrown out by Mrs. Adele Blood Hope, Miss Ruth Allen, Mrs. Isabel Clark and Miss McKee that he was inconsolably “unhappy” when not in the company of Mrs. Herbert and that he “didn’t know what he would do without her”; that he was “lonesome” when she was absent; and that his visit to Europe was a “failure”
Mrs. Herbert was or had been a married woman, but whether she was a widow or divorced from her husband does not appear. There is some evidence in the ease that they were seen together in 1924 or 1925, but all attempts to describe their marital relations were met with objections sustained. 'Likewise, objection was sustained to an attempt to show that she had been previously married. No background of her past is given, except as shown by the fragmentary references herein recorded.
We have stated the evidence as strongly in plaintiff's favor as the record will warrant and we have made an extended review of the evidence because of the often applied rule that an appellate court will not interfere with the judgment entered by a fact-finding body when there exists a substantial conflict in evidence. This rule, however, does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence.
In a consideration of the question as to whether or not there exists a substantial conflict, the fact that the consideration passing from the decedent to the plaintiff was so grossly disproportionate, as the books put it, as to shock the conscience of all men, cannot be laid out of the case; nor can the confidential relations that existed between the parties, in the absence of evidence of independent advice, be disregarded. There must be more than a conflict of mere words to constitute a conflict of evidence. The contrary evidence must be of a substantial character, such as reason
“While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff’s case is always a question of law for the court (Grant v. Chicago etc. Ry. Co.,78 Mont. 97 [252 Pac. 382 ], and in determining this question ‘the credulity of courts is not to be deemed commensurate with the facility and vehemence with which a witness swears. “It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude the judgment.” ’ ”
The rule in cases such as the one before us is that the court must view the transaction with the “most scrutinizing jealousy”.- This means, of course, any court in which the issue may be raised. Oral evidence, of which there is no satisfactory independent corroboration, is the weakest kind of evidence known to the law. In
Smellie
v.
Southern Pac. Co.,
“ ‘Evidence of the declarations or oral admissions of a party are always received with caution. (Code Civ. Proc., sec. 2061, subd. 4.) ...
“ ‘A third inherent weakness to be found in the testimony of Ireland is that it purports to give the statements or declarations of a deceased person. Regarding testimony of this character, this court said: “The evidence is of oral admissions against interest by a man whose lips are sealed in death. What, then, does the law say of such evidence (assuming now its admissibility) ? The Code of Civil Procedure declares (sec. 2061, subd. 4) that ‘the evidence of oral admissions of a party ought to be received with caution by a jury’. In Mattingly v. Pennie,105 Cal. 514 [45 Am. St. Rep. 87 ,39 Pac. 200 ], this court in bank said, ‘No weaker kind of testimony could be produced. ’ Again in bank (Austin v. Wilcoxson,149 Cal. 24 [84 Pac. 417 ], this court has said: ‘It is not stating it too strongly to say that evidence so given under such circumstances must appear to any court to bein its nature the weakest and most unsatisfactory.’ ” Estate of Emerson, 175 Cal. 724 , 727 [167 Pac. 149 , 151].) We might go on and cite many other authorities, but the above are sufficient for our present purpose.’ ”
The only evidence introduced by plaintiff is that given by persons who unquestionably were active participants in an effort, through a long period of time, to induce the decedent by means shown by the record to make the plaintiff a beneficiary of his estate. That such was the purpose is too plain to require argument. He was actually taken to task by Adele Blood Hope on at least one occasion for having failed to comply with her suggestion made to him as to what she thought was a suitable provision for him to make for plaintiff. Every means that was thought likely to accomplish that end was brought to bear upon decedent. That there was concert of action on the part of plaintiff and her companions is all but admitted by them. The pressure was intensely applied beginning with the New York trip and was increased by the subsequent Vancouver and Palm Springs trips and finally spent its force at the Engstrum Apartments on October 10, 1927, or shortly thereafter, when the parting of the ways followed whatever transaction took place on that day. The story of a transaction involving the transfer by said instrument to the enrichment of the plaintiff in the sum of $500,000, in the circumstances related by plaintiff and her witnesses, not only strains the credulity of those expected to accept it, but it would seem to bring into serious question the normal mental condition of a former successful business man who engaged in such a transaction. The contention that the decedent had no independent advice in the matter, especially during the few weeks immediately prior to the transaction, when he was under the surveillance of Mrs. Herbert and her companions at the Engstrum, is rendered probable by plaintiff’s witnesses, Miss McKee and Miss Blood. The colonel advised Mrs. Herbert, as he delivered the note to her, to deposit it in the bank, and, after his death, to take it to Mr. Macdonald and he would see that it was paid. Mr. Macdonald had no knowledge of the note until after the colonel’s death. Miss Blood testified that the colonel said to her that his only regret was that he would not be able to see Mr. Macdonald’s face when the note would come to his attention.
The testimony of the only person who claimed to have witnessed the transaction is to the effect that the instrument was the product of one continuous writing operation. This testimony is weakened by the physical facts which appear on the face of the note. It does not require the assistance of an expert to discern them. In addition to the physical facts already pointed out, and which tend to nullify Miss McKee’s testimony in material respects, the fifth cipher in “$500,000” is out of line with the third and fourth ciphers, and it is relatively smaller and was evidently blotted. The inserted words ‘ ‘ One month ’ ’ were also evidently blotted. The letter “h” intersects the letter “e” in the word “hundred” just above it. No blotter was used to absorb the ink after writing the word “hundred”. The only words or figures which show the use of a blotter at all are “one month” and the fifth cipher. The “after death” clause rendered the note nonnegotiable and therefore postponed an investigation as to its genuineness until after the death of Colonel Lankershim. If a blotter had been used at the time the body of the instrument was written, absorption would have shown in the words adjoining and immediately above and in close proximity to the blotted words. On the contrary, all other writing shows quite black and heavy. If the writing was a continuous process, the ink must have been wet in “hundred” when the blotted words were written and, if so, the extension of the letter “h” into the letter “e” would have produced the usual effect of blurring or running together of the ink. Instead, the letter “e” has the appearance of having been completely dried at the time the letter “h”, from underneath, intersected said letter “e”. The written words “thousand dollars” have a decided variance in slant of letters from the letters in the preceding words, showing a different writing position. Features upon the face of the instrument give the appearance of alterations made after its execution, noticeably the forcing out of line of the word “me” to avoid writing into the letter “ J”.
Plaintiff meets this criticism by saying that it was done to avoid writing into the bracket at the end of a ruled line. Appellants respond by pointing out that printed mat
The rule as to the adequacy of consideration is well stated in 13 Corpus Juris, sections 237, 238, as follows: “So long as it is something of real value in the eye of the law, whether or not the consideration is adequate to the promise is generally immaterial in the absence of fraud. . . . the inadequacy, as has been well said, is for the parties to consider at the time of making the agreement, and not for the court when it is sought to be enforced. It is competent for the parties to make whatever contracts they may please, so long as there is
no fraud
or deception or infringement of law. Hence the fact that the bargain is a hard one will not deprive it of validity.” However, this is by no means an inflexible rule, but has exceptions well recognized in the decisions of many of the leading states of the Union, including decisions of the United States Supreme Court. The exceptions exist “where the inadequacy is so gross as to shock the conscience and common sense of all men, it may amount both at law and in equity to proof of fraud, oppression and undue influence. So, while it is ordinarily stated to be the rule at law that the adequacy of consideration is not material, a court of law, where the contract is unreasonable and unconscionable, may give a party who sues for the breach, not what the other party promised to pay, but only what plaintiff is honestly and equitably entitled to.” This rule of equity strongly appeals to the common sense of justice. Section 239
In the state of the evidence in this case it is a very serious question whether, as a matter of law, the evidence adduced by the plaintiff is sufficiently substantial to support the judgment. In eases in which a serious doubt is created in the mind of the reviewing court as to the sufficiency of the evidence to support the judgment, it becomes the duty of the court to consider carefully the errors complained of, and if it should appear upon such consideration that the errors committed probably prejudiced the case of the party against whom they were committed, it is the duty of the court to order a retrial of the cause. In such cases the provisions of article YI, section
4y2
of the Constitution cannot be invoked in aid of the affirmance of the judgment, unless it can be said that the justice of the cause preponderated so heavily on the side of the prevailing party that none of such errors did or could have contributed to or resulted in a miscarriage of justice. Construing article YI, section 4% of the Constitution, this court, in
People
v.
Davis,
Under the doubtful state of the evidence, we are of the view that the case should be reversed for reasons already pointed out and hereafter to be considered.
If the note was intended as a gift payable after death, then, of course, it did not create an enforceable legal obligation.
(Coon
v.
Shry,
As part of her ease respondent offered evidence tending to prove various services intermittently rendered by her, and the length of time over which the services were rendered. According to the evidence produced by her, all of the .services were rendered and completed prior to the date of the execution of the note. There is not one word of evidence that services of any kind were rendered after that date. If the note was intended as compensation for the services already rendered, then the provisions of section 1606 of the Civil Code are applicable, and this is so whether the obligation to pay for these past services was either a moral or a legal obligation. That section provides: ‘‘An existing legal obligation resting upon the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding with the extent of the obligation, but no further or otherwise.” (Italics supplied.)
It must be admitted that, under this theory, at the time the note was executed the ‘‘extent of the obligation” existing against Colonel Lankershim, legally or morally, was to pay for the reasonable value of the services rendered. If this analysis is correct, then the only consideration that can support
Appellants make complaint that the value of the testimony of the expert witnesses was greatly weakened, if not destroyed, by the many objections made by respondent and, as they contend, improperly sustained. It is also insisted with some force that the examination of these witnesses was unduly curtailed and frequently interrupted by objections which should not have been allowed to the extent that it seriously prejudiced appellants’ cause with the jury. That many of the objections were placed on highly technical, if not insubstantial, grounds is not entirely without support. The specific grounds of the objections were that the questions called for the conclusions or inferences of the witnesses or carried them into the realms of speculation or permitted them to make deductions and resort to the inductive method of arriving at conclusions. An examination of the record convinces us that the examination of the opinion witnesses was too narrowly limited. A number of the objections sustained on the grounds stated were not well taken, as the questions called for the opinions of the witnesses on matters within the field of this class of evidence. It may be properly said that ruling upon the admission of such testimony in the
H. 0. Moulton, who had been the bookkeeper in the Lankershim Estate Corporation for a number of years, testified on behalf of defendants as to the failing eyesight of decedent, his manner of signing his name, and as to his traits and his general physical condition. During his examination he said that he had to do, in his employment, with keeping records of all of decedent’s properties and that he was familiar with said properties. This designation of duties, plaintiff claimed, opened the door for cross-examination as to his wealth and entitled plaintiff to a listing of all the properties of whatsoever kind owned by decedent in 1927. Accordingly, over the objection of appellants, the witness was directed to furnish lists setting out all real and personal property, including stocks, bonds, and all evidences of debt owned by him. The witness, under the ruling, testified that decedent owned all but two shares of the Lankershim Estate Corporation, the authorized capital of which was $1,000,000. A list of real estate, stocks and bonds covering approximately six printed pages was read into the record. The par value aggregated $1,012,923.31. The market value was not given. This evidence near the close of the case was stricken out as being inadmissible. Upon several occasions during the trial the plaintiff brought to the attention of the jury that Colonel Lankershim was a very wealthy man. This matter was made to appear, by inference, on the cross-examination of witness Sellers, by questions as to the compensation he was to receive. The cross-examination of Dr. Kress, the eye specialist who treated the colonel, did not relate to any matter about which he testified in chief, but had to do with the fees which the oculist had charged him. Without any apparent ground to prompt the question, Miss Tufts, secretary of the Lanker-shim Corporation, was asked if she had ever read to the colonel a letter written by Mrs. Lankershim to her husband in which she signed herself “millionairess”. No offer was made to prove that she had written such a letter. Taking into consideration the nature of the action, it is not likely that the jury was able to entirely shut out of mind the long list of real properties, certificates of stocks, bonds, and evidences of wealth which had been read to them. Both counts of the complaint specifically alleged the performance of service as the foundation of the action.
A number of other assignments of error are argued by appellants, but we do not deem it necessary to go further than to consider certain instructions requested by appellants and refused by the court.
The important issues tendered by the answer were fraud, undue influence, the weakened condition of decedent by age, and the gross inadequacy of the consideration. Appellants prepared and offered a number of instructions setting forth their several defenses which were calculated to give the jury a full understanding of the issues involved in the case and the rules of law applicable to the issues as framed by appellants. These requested instructions which had to do strictly with undue influence and inadequacy of consideration were all refused and no equivalent instructions were elsewhere given. Unless the pleadings were read to the jury ■—and it does not appear that they were—the jury would not have definite or sufficient information as to all the vital matters of defense pleaded by appellants.
The consequent duties and obligations which the law imposes, in a ease where a confidential relation is shown to exist, upon a person who greatly advantages in treating with a confiding person, is nowhere fully or adequately stated. The only instructions given at the request of appellants in which the subject “confidence” reposed in another is mentioned are instructions No. 70 and No. 75. All others were refused. The ones given in no way informed the jury as to the effect of such relations or the rules of law to be applied in such cases, but merely enumerated some of the things that may properly be considered in determining whether such relations exist.- The only references made to the subject in the instructions given at the request of plaintiff are to be found in instructions No. 3, No. 11, No. 11 (a), No. 11 (c), No. 11 (b), and No. 13. Instruction No. 3 threw the burden unqualifiedly on appellants. No. 11 did likewise.
Appellants set out in their briefs some fifty requested instructions, a number of which they vigorously "urge should have been given and it constituted reversible error to refuse them. Among this number, which bore upon the fundamental issues of law presented by the defense, and which appellants specially urge, are Nos. 40, 69, 71, 72, 73, and 74. Space will not permit a reproduction of all of the rejected instructions and we will set forth but two as typical, in a general way, of the others. Instruction No. 40 reads: “The plaintiff’s action in this case is based upon the documents herein sued upon. The defendants have pleaded, among oiher defenses, that the consideration for this document, if any, was grossly inadequate. Defendants also claim, as one .of their defenses, that the said document was fraudulently obtained by the plaintiff from Colonel J. B. Lanker-shim. I instruct you that it is the law that a presumption of fraud arises where there is a great disparity between the value of services rendered and the recompense, and a confidential relation exists between the parties, and the party promising to pay has had no independent advice and has relied upon the beneficiary named in the preparing of the document signed by him, and the beneficiary under the document writes the entire body of the document in her own hand. It is for you to determine from the evidence if the different factors set out existed at the time it is alleged the document herein sued upon was made (if you find it to have been made).” *
None of the instructions gave consideration to independent advice as an issue in cases in which confidential relations are alleged, nor on the important matters mentioned herein. The instruction would have been freer of criticism had it read: “A presumption of undue influence” rather than a “presumption of fraud”. In the interest of a full and complete understanding of the law applicable to the case it was necessary that the jury be instructed on the major subjects raised by the pleadings even if a modification in this or other respects was required to make a more acceptable presentation of the law. "We think this is the rule approved by statute and judicial decision where fundamentals are involved, there being no attempt on the part of the author to
Instruction No. 72 is more comprehensive and reads: “The law defines a confidential relation as any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent. A fiduciary relation in law is ordinarily synonymous with a confidential relation. It is also founded upon the trust or confidence reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed. If, therefore, from all the evidence in this case, you find that the relations between Colonel J. B. Lankershim and the plaintiff were such that Colonel Lankershim reposed confidence in the integrity or fidelity of plaintiff, and relied upon plaintiff in the transaction involved, and that plaintiff voluntarily accepted or assumed to accept such confidence, then you must find that a confidential relation existed between Colonel J. B. Lankershim and plaintiff. Where such a confidential relation exists, the law views with strictness the business dealings of the one in whom the confidence is reposed to show that the other party to the relation acted voluntarily with a full knowledge of all the facts and that the transaction was fair and just. If, therefore, you find from all the facts of this case that a confidential relation did in fact exist between Colonel J. B. Lankershim and the plaintiff at the time of the execution and delivery of the document here sued upon (if it was executed and delivered) the burden is upon plaintiff of showing that the transaction was fair and just and fully understood and consented to by Colonel J. B. Lankershim, and unless you find that plaintiff has shown the transaction to have been of this character, your verdict must be for the defendants.”
“There was no consideration, or at least no adequate consideration, for the deeds, and, from this alone, the presumption of undue influence arises. The case is one of that class of bargains that are said to be ‘of such an unconscionable nature and of such gross inequality as naturally leads to the presumption of fraud, imposition, or undue influence; . . . such bargains as no man in his senses, and not under delusion would make on the one hand, and as no honest and fair man would accept on the other, being inequitable and unconscionable bargains’. (1 Story’s Equity Jurisprudence, sec. 244, et seq.) ...”
(Allore
v.
Jewell,
Respondent takes the position that the judgment may be sustained on the theory of novation or account stated. Neither theory was presented by pleading, or raised during the trial by evidence directed to the issues, or by any request for instructions framed to elucidate said theories. This precludes respondent from arguing these new theories on appeal.
The judgment is reversed.
Langdon, J., Curtis, J., Shenk, J., and Waste, C. J., concurred.
Edmonds, J., being disqualified, did not participate in the consideration or decision of this ease.
Rehearing denied.