108 Cal. 608 | Cal. | 1895
This is an appeal by Maria M. Lang-ford, widow of Charles E. Langford, deceased, and proponent in the lower court of his last will, from a judgment denying probate of said will, and from an order denying her motion for a new trial.
The probate of the will was contested by children of the decedent by a former wife, upon the grounds that he was mentally incompetent to make a will, and that it was procured to be made by the fraud and also by the undue influence of appellant. In answer to interrogatories propounded to the jury they found that at the time of the execution of the will and also at the time of the execution of a certain codicil, the decedent was of sound and disposing mind and memory, but that it was
The finding of fraud may be dismissed with the remark that there is no evidence to sxipport it.' The alleged fraud was that the appellant falsely and fraudulently represented to the decedent that the contestants cared nothing for him, had no love for him, and only wanted his money. There is nothing in the evidence to support these averments.
As to the finding of undue influence, the contentions of appellant are that there is no evidence sufficient to justify it, and that the court committed, material and reversible errors in rulings upon the admissibility of evidence on that issue; and we think that both contentions must be sustained.
The decedent and appellant were married in Fulton, Illinois, in 1873. They resided there several years and then removed to Pasadena, California, where they resided until his death, and where the will was made. There can be no pretense that there is evidence of any direct inflxience exercised by appellant or any other person over the decedent at the very time of the execution of the will, and affecting the testamentary act, or constituting part of the res gestee. To all appearances, and as far as the circumstances in proof show, he was acting with perfect freedom, and following his own uncontrolled wishes. The will was executed on November 29, 1887. Two or three weeks prior to that date he went to the law office of Winslow & Hester, at Pasadena, and, after some conversation with Mr. Winslow, who. was in very bad health, the latter introduced him to Mr. Frank J. Polley, who was a young lawyer then in the employ of Winslow & Hester, with the request that he (Polley) should draw a will for the deceased. The appellant had no acquaintance with Polley, Winslow, or Hester. Polley never saw her until the trial of this cause, which was over six years afterward. After Winslow had turned over to Polley the business of the preparation of the will, the decedent visited the office several times and
So far, therefore, as we are to be governed by the facts and circumstances directly attendant upon the execution of the will and codicil and forming part of the res gestae, we are inevitably forced to the conclusion that the testator acted with a perfectly free volition. This is not the case where a man makes a will upon his deathbed, surrounded by those who turn out to be his devisees; nor is it a case where a weak person at the time of the execution of his will is teased and tormented by the importunities of relatives who do not allow him to be out of their sight, or to have any opportunity for quiet thought or independent advice. In the case at bar the testator, as found by the jury, was of sound mind; when he concluded to make a will he went entirely alone to his attorneys, with whom he had various conversations; and he had ample opportunity to fully and freely think out what he wanted to do, and to change any conclusion which he might have arrived at, if he so desired. There is not a single suspicious circumstance immediately connected with the execution of the will or the codicil. What, then, are the other facts in proof which present the alleged basis for upsetting this will?
The contention of respondents, when thoroughly sifted, seems to be about this: That there is evidence to the point that appellant had a general influence over the deceased which ought to be classified as “undue”; and that, therefore, although when he made his will, under the circumstances above stated, he was apparently free to act as he pleased, yet it must be inferred that this general influence of appellant accompanied him, subverting his volition and coercing him to act against his real wishes. To maintain such a strained and difficult theory
As to the evidence relied on of occurrences which took place at any point of time reasonably near the time of the execution of the will, they are substantially these: The witness McCarty testified that in 1888, about a year after the execution of the will and two years before the date of the codicil, he worked on a dwelling-house that decedent was building. A Mr. McKenzie was foreman of the work; and the substance of McCarty’s testimony is in these words: “I saw Mr. and Mrs. Langford there, and Mrs. Langford gave some instructions in reference to the work. Mr. Langford did not give any as I know of.” There is no significance whatever in this testimony; the wife had a perfect right to have a voice in the matter of the family residence. There is also the testimony of the witness Irish, who worked for the deceased during a period between 1889 and 1892, and was discharged. This was long after the execution of the will, but included the date of the execution of the codicil. His testimony was directed principally to an attempt at showing that the deceased was not of a strong mind. As to the question of “influence,” he stated that Mr. Langford gave him his instructions, but that “sometimes he would tell me that Mrs. Langford wanted this done; that she wanted it done this way, or she wanted it done, that way. Different times while I was there, why lm would say that Maria—he most always called her Maria to me—wanted the lawn mowed, or the flowers fixed, or the driveway fixed, or something of that kind.” He was asked,by respondents if, from his observations, the deceased “ appeared to you to be in fear of his wife ”; and his answer was as follows: “Well, I could not answer that; he always seemed to want to—did n’t never — he always seemed he didn’t want to displease her in anything—in no way displease her. I do not remember of any instance of him expressing himself in reference to pleasing or displeasing her, it may come to my memory. I know that Mrs. Langford went east.” He was
The foregoing is about all the evidence as to any occurrences which took place near the time of the execution of the will or codicil, apart from certain alleged declarations by the deceased of testamentary intent, which will be noticed hereafter. There was, however, the testimony of the witness Eeinke, who was a hired man of deceased for a period commencing in 1892. This was five or six years after the execution of the will, and about two years after the execution of the codicil. The facts to which he testified were that, while he was working for deceased, there was a difference of opinion between Mr. and Mrs. Langford as to whether some orchard land should be plowed at a certain time—■ whether some beans and corn should be planted at a certain place—whether a fresh milch cow should be bought for family use—whether a horse to be used about the place should be bought and another one sold; and that it turned out that these things were done in accordance with the expressed opinion and desire of Mrs. Langford. In answer to a direct leading question of respondents’ counsel, “ Did he appear to be afraid of her?” the witness answered: “Yes, sir.” One Eowland also testified that he was a veterinarian, and that, when he was doctoring a sick horse of deceased—while Eeinke was with him—the deceased told him, although he was an entire stranger, that he did not want Maria to know about it, because she might think that the horse was not sick enough to be doctored, and that he had more peace
There is some evidence of declarations of the decedent about his testamentary intent, consisting mainly of the testimony of the contestants themselves, and much of it too remote from the time of the execution of the will to be of any consequence, or even admissible.
The son and contestant, Charles E. Langford, said that he received in Minnesota a letter from the deceased, written at Pasadena, which was written, “ as near as I can remember, a month or six weeks before
On October 18, 1888, about a year after the execution of the will, the deceased wrote a letter to his son-in-law, Longshore, which contained the' following: “Yours received and contents noted. The amount of your note due me the 1st of December next would be $265; note $200, September the 1st, ’85, three jmars and three months’ interest at ten per cent more. I think you ought to pay this now, or the first of December. It will be for your advantage, for I shall remember my children in my will according to their worth and honor in dealing with me.” The balance of the letter is about other things.
John S. Berwick, son-in-law of the deceased, testified that in 1888, the year after the execution of the will, the deceased told him, in substance, that he had always told his children that his property should be theirs, and
The witness Re'inke, the hired man hereinbefore' noticed, testified that when he worked for deceased, which was in 1892 or 1893, he said to decedent, “ Well, I suppose your children are just as rich as you are,” and that the deceased answered: “ No, they are not. Some of them are poor, but they ain’t so very poor,” he says, “Probably, I don’t know anything—didn’t hear anything for several years of them that they are poor, but after I am dead,” he says, “they can have it all.”
The foregoing is about all the evidence of declarations of testamentary intent within any reasonable time of the execution of the will or codicil which we can find in the transcript—all, for instance, since the settlement of the deceased in California. Some of the contestants testified to other statements made so long before the execution of the will as to be either beyond the range of legitimate evidence, or too remote to have any appreciable value.
If we consider the above stated declarations of the deceased (supposing them to have been fully proved) in the light of the other facts of the case, it is apparent that they did not express his real intentions. He is made to speak of dividing his property equally among his children in a will to be made, when he had already made a will which he never changed (as to the contestants), in which he had given them only a certain part of his property. Three years afterward he solemnly republished that will, at the time he made the codicil. We need not inquire whether the alleged declarations were made to;hasten the payments of debts owing to deceased by some of the contestants, or to appease children of a former wife who were bitterly opposed to his second marriage, or what other motive moved him to make them. The language of Justice Temple in the McDevitt will contest (95 Cal. 17) is peculiarly applicable here: “Whether by this statement the decedent intended to deceive the witness, or at the time intended to
There was a good deal of evidence introduced over the objections of appellant which, in our opinion, was improperly admitted. The decedent was married to the appellant in the year 1873, and before that time had been divorced from a former wife, who was the mother of the contestants; and contestants were allowed to testify to declarations which, they say, the decedent made to them before, at the time of, and shortly after the marriage. For instance, some of the contestants,
It is sought to distinguish the case at bar from the McDevitt case, because in the case at bar there was the relation of husband and wife; and the position seems to be taken that such relation raises the presumption of undue influence. But there is no such presumption. “ There is no legal presumption against the validity of any provision which a husband may make in a wife’s favor, for she may justly influence the making of her
It is contended, also, that the case at bar differs from the McDevitt case, because here the will was unnatural.
(It is proper to notice particularly that the averment that appellant would not permit contestants to see the decedent is entirely unsupported by the evidence. Not only did he go about daily attending to his business entirely alone, but the appellant at one time visited the east for two months, the decedent remaining at home, and.upon two occasions the decedent visited the east by himself.)
Looking through the transcript in this case we see no evidence at all sufficient to warrant a jury in annulling the solemn acts by which the decedent executed his will, and republished it in the codicil. If the law is to be changed, and the right of disposing of one’s property by will, the policy of which has been sanctioned by the wisdom and experience of many generations of men, is to be taken away, that result must be effected by the legislative department of the government. As the law now stands that right cannot be frittered away after the death of the testator according to the tastes and notions of others. It is quite likely that in the case at bar the provisions of the will did not meet with the approval of the juroré; but their approval was not necessary.
The judgment and order denying a new trial are reversed.
Temple, J., and Henshaw, J., concurred.