239 P. 364 | Cal. Ct. App. | 1925
Laura Jane Carson of Sacramento County died testate on or about the eighth day of February, 1923, leaving her, surviving, Lawrence E. Carson, a husband, and Mrs. Emma Jane Chase, a daughter. Deceased was eighty years of age past. Her will was executed February 1, 1923, while she was ill with pneumonia. In this will Lawrence E. Carson, her husband, was named executor; a legacy of $10 was left to Emma J. Chase, a daughter; a legacy of $500 to Carrie Johnson, a niece, and the residue was left to the husband. The estimated value of the estate was about $7,000. She had, several months before, conveyed other property to the husband. The validity of the will was contested by Mrs. Emma J. Chase, the daughter. The grounds of contest were unsoundness of mind and undue influence. The undue influence was alleged to have been exercised by the husband, Lawrence E. Carson. *50 The case was twice tried by the court, sitting with a jury, and upon each trial the court refused to submit the question of unsoundness of mind to the jury. On the second trial the jury rendered a verdict in favor of the contestant on the question of undue influence.
The contention of appellant is that the verdict of the jury is not substantially supported, or supported at all, by evidence, and that the question of undue influence should not have been submitted to the jury.
It is also contended that the court erred in permitting a nonexpert witness to express an opinion on the question of unsoundness of mind, particularly as the court had at the first trial granted a nonsuit on the question of unsoundness of mind and no appeal had been taken therefrom.
[1] It will be necessary to refer to the evidence to determine as a matter of law whether the evidence substantially and fairly supports the verdict of undue influence.
It seems that the contestant's mother and father separated (whether or not they were divorced does not appear) about the year 1910; the exact time is unimportant. Before the separation they were living in a home which the mother had built (the evidence is not clear as to whether or not this was the mother's separate property before marriage). The mother continued to live in this house until her death. After the separation the father lived a few years in Sacramento in a separate residence and the daughter lived with the mother. Thereafter the father moved to Los Angeles and in a few years the daughter went to Los Angeles to live with the father. This residence continued for a duration of about sixteen years, until the father's death. The father accumulated apparently $12,000 worth of property, several thousand of which were used by him in his last sickness, according to the testimony of the daughter. The balance was given to the daughter. During this period of sixteen years the daughter visited the mother once. After the death of the father the daughter returned to live with the mother and continued to live with her until August 4, 1922. The daughter's maiden name was Burke. It does not appear when she was married. It appears from the evidence that it was the father's desire that the daughter should keep the property he gave her for herself, and if there was anything left it should be given to orphan children. The daughter *51 testified that she told her mother this. She testified in her deposition first taken to that effect, and at the trial testified that she told her mother when "we" are through with it, it is to go to the orphans. There is testimony in the record to the effect that the mother had said that as the daughter, Mrs. Chase, was going to follow the father's wishes and the daughter did not intend to give the mother any of her property, she would see that the daughter received none of hers. There is also much evidence in the record to the effect that the mother was fearful that the daughter was trying to get the mother's property so that it might be given to the church. This seems to have worried the mother much, and immediately after the will was made she remarked to the nurse: "I can rest easy now, the Minister, Rev. Bartlan, and the rest of them cannot spend my money." She made other declarations that the daughter spent too much money in the church, and she also told many people that she was usually left alone, the daughter was not much company to her as she practically lived in the church. The daughter admitted she spent much of her time with the church. This is corroborated by the Rev. Bartlan: "Q. Did she frequently attend every night in the week? A. Yes, I think I can say yes. Q. In regard to the daytime, did she have occasion to visit your church in the daytime? A. Once or twice a week she might come up there for services in the church. Q. Did she have any particular duties or any services she performed there? A. Yes, she had. Q. The question was, what were the usual hours that she was in attendance, had any activity with the church? A. At night. Q. At night? A. It would vary from 10:30 to 11:30, perhaps later, sometimes later." We quote further to show the influence the minister had with the said daughter: "Q. What did she say in regard to leaving Sacramento prior to August? A. Well, she asked me whether it would be advisable for her to leave Sacramento, detailing the circumstances of her environment at her home. Q. And you told her what? A. I advised her to leave, at least temporarily. Q. Did Mrs. Chase go to Oakland? A. Yes. Q. And do you know when she returned? A. About a week after her mother's death."
When the trouble occurred between Mr. Carson and Mrs. Carson, as will appear further on, because Mr. Carson went away, about August 1, 1922, it seems that the Rev. Bartlan *52 was present with the mother and daughter on the way to Attorney Dunn's office, apparently to talk about the divorce matter.
About the month of February, 1921, Lawrence E. Carson, the proponent, went to work at the home of Laura Jane Burke at Thirtieth and B Streets, Sacramento. Soon thereafter he was given a room, and he did garden work a short time. Prior to this he had been discharged, it seems honorably, from the United States Army; this was his second enlistment. It will be necessary to refer to this again. There is some dispute as to his age, and we deem it fair to say it was slightly upward of fifty years, while Mrs. Burke's age was slightly upward of eighty years. This acquaintanceship grew into a marriage at Marysville, November 7, 1921. After the marriage they lived at the old home residence of Mrs. Carson, together with her daughter. Then came the old story of the child objecting to a parent marrying a younger person, or anyone else. The evidence reveals the attitude of some of the neighbors sympathizing with the daughter by reason of the marriage; some of them refused to visit Mrs. Carson. This trouble between Mr. and Mrs. Carson occurred early in August, 1922, when Mr. Carson went to the southern part of the state to see his daughter by a former marriage. He did not inform his wife that he was going away at the time he left. The evidence, and a fair inference therefrom, reveal that something occurred which entirely turned Mrs. Carson against her husband. Attorneys were consulted, divorce was discussed, ministers of the gospel apparently appealed to, banks were visited, safe-deposit boxes were searched, the husband was accused of taking valuable documents away, etc. At about the time the fever of excitement was highest the husband returned. The explanation of the husband seemed to satisfy the wife; but the daughter, about the fourth day of August, 1922, very clandestinely left the city and did everything she could thereafter to conceal her whereabouts from her mother, and never again, it seems, tried to see her mother, although she was in Sacramento a month before the mother's death and was further notified of her mother's last illness, which notice she admitted receiving.
It is at least insinuated by the contestant that Carson was not the right man for Mrs. Carson to marry, that he was too *53
young, etc. This could be said more effectively in Estate ofAnderson,
At least three reasons appear why the daughter was not provided for in the will, any one of which might have been sufficient to produce the terms of the will. First, it appears from the testimony that Mrs. Chase told her mother what her father told her she should do with the property he had given her (Mrs. Chase). It does not appear what occasioned the separation between the father and mother, but it seemed to be sufficiently strong to last until death. No doubt the mother reasoned that the daughter cared more for the father than she did for the mother, as she seemed to adhere so steadfastly to his wishes, and it is not hard to believe that she declared, in effect, that "Jennie shall not have any of my property as she does not intend to give me any of hers." The second reason is that she no doubt encouraged her mother to believe Mr. Carson took her papers away and that he probably had no intention of returning, and she no doubt did what she could to turn the mother against him, and when the husband returned and explained everything, apparently to the satisfaction of the mother, Mrs. Carson probably then felt her husband had been wronged. This no doubt intensified her feeling for Carson, if anything was lacking before. Our supreme court, in Estate ofWilson, 117 Cal. at page 279 [49 P. 172, 177], comment upon the effect of such a reconciliation: "But during her last sickness, and after she had made the will of February 27th, her husband frequently went to see her, and they were often together alone; and it was quite natural that, under these circumstances, her animosity to him should soften, as it evidently did." It was but natural for the mother then to criticise the daughter, probably charging her with trying to cause her to divorce her husband, which the daughter resented by leaving. If any hope still remained for her to be the recipient of her mother's bounty, in the face of the last two reasons against her, she must have destroyed every vestige of chance by concealing her whereabouts and permitting only the minister, Rev. Bartlan, to know where she was, the minister refusing to tell the mother at all because the daughter had warned him not to, thus aggravating an already very tender grievance with the mother, caused by the daughter paying too much heed to the minister's advice. *56
Naturally this would influence the mother more against both the minister and the daughter, and she gave expression to these feelings at the time she made the will, as before quoted, but the effect of this conduct was augmented and reinforced by what must have appeared to the mother as nothing less than cruelty when, in her last sickness, she had a telegram sent to the daughter stating she was very ill and asking her to come, the daughter receiving the message but making no reply. The telegram was sent about seven days before the mother died, and the daughter could have responded in person in less than twenty-four hours, or, had she been ill, as claimed, she could have afforded her mother the consolation of a message in recognition of the telegram; this might have, even at this late date, caused the mother to redraft the will. The mother died February 8th. About a week after the mother was buried the daughter returned to Sacramento, according to Rev. Bartlan's testimony. With these reasons before us we cannot say that the will does not express the wishes of the testatrix, and upon this we quote from Estate of Bryson, 191 Cal., at page 541 [
The daughter stated in explanation of her failure to answer the telegram, that she thought the telegram was sent as a hoax to induce her to come home, and also that she was ill at the time the telegram was read to her. The daughter may have been actuated by what she considered the best of motives by refusing to see and concealing herself from her mother, but that does not soften the harshness of her conduct as it must have appeared unexplained to the mother, and we can only consider what would be the usual effect of her conduct upon the mother, and we feel that this would be the same whether the mother was strong or weak, sick or well, but the effect probably would have been aggravated *57 had she been, as the daughter claimed, sick and weak. We find no place in the testimony where Mr. Carson tried to keep the daughter from visiting the mother when Mrs. Chase was in Sacramento in January, 1923, or at any other time before the mother was taken ill. In the letter Mrs. Schardin wrote about the first of January, 1923, Mrs. Carson had her write Jennie that she would not make her any trouble if she would return the papers, and told her to tell her also that she had deeded the home place to Mr. Carson. The daughter did not answer the letter, but apparently received it, as about January 8th she came to Sacramento and returned the papers. In regard to the papers, the following occurred in the testimony of Rev. Bartlan: "Q. Did she inform you at any time prior to her departure in August, 1922, about having papers and moneys, etc., belonging to Mrs. Carson? A. I doubt it very much, I don't remember. Q. Will you say she did not? A. I cannot be pinned down, I do not remember." Rev. Bartlan also testified in regard to the papers of Mrs. Carson: "Q. Will you state what was said by her and by yourself at that time regarding the disposition of the papers? A. I told her I was glad she came back and had restored the papers."
When Mrs. Carson had Mrs. Schardin state in the letter to the daughter that she had deeded the home place to the husband, this put Mrs. Chase on notice so she could have interviewed the mother when she came to Sacramento on this January trip and she could have ascertained then, if she desired, if Mr. Carson had used any undue influence or force to procure the deed, and, if justified, thus would have had the mother's assistance to prove the undue influence, if any had been exerted; but she did not attempt to go near her mother for any purpose.
Instead of the will being an unnatural will, it is only a fair illustration of the ordinary display of the operation of natural resentment by a parent of real or fancied wrongs. The cases are full of instances where the reasons for the resentment were more indirect and more trifling as compared with the reasons here shown and no doubt were the turning point against the child, and in some cases the beneficiary disgustingly encouraged the resentment. We refer to one case cited by our supreme court in the Estate of Kaufman,
Mr. Carson was not present when the will was executed and we find the unusual condition in this case of the one charged with exerting the undue influence with having advised the testatrix not to make a will at the time she did. He said to her: "That she had been ill before just like that, and she would be all right in a few days." Upon the question of resentment and dislikes, we quote the following from Mr. Freeman's notes in In re Hess, 31 Am. St. Rep., at page 680: "The fact that the testator was prejudiced against or had an aversion for some of the natural objects of his bounty, and therefore disinherited them in favor of others, whether related to him or not, does not establish undue influence, though the will is clearly the fruit of his resentment and dislike: (citing cases). Nor, when family dissensions arise, will the fact that a child not only shared in the feelings of his parent respecting the conduct of another child, and perhaps kept alive and increased the parental resentment, constitute undue influence vitiating a will in favor of the former and against the latter: Woodward v. James, 3 Strob. (S.C.) 552 [51 Am. Dec. 649]." *59
Unusual proof is furnished in the instant case of the deliberate act in the execution of the will. It is first shown that the testatrix, herself, directed arrangements to be made for its execution. When the attorney arrived a reasonable range of discussion followed between himself and the testatrix and, after ascertaining the wishes of Mrs. Carson, Mr. Gebhart began preparing the will. Before it was finished the doctor arrived and Mrs. Carson discussed matters in his presence and, after the doctor read the will to her, and she had signed it, he, with the attorney, signed as witnesses. The attorney left, taking the will with him. About the time he was leaving the nurse had returned from another patient she had been attending and Mrs. Carson told her she arrived too late to be present when the will was made, but seemed relieved that the task was over and said: "I can rest easy now," etc. And she told the nurse how she had made the will and how happy she had been with Mr. Carson and told her that she had told the daughter before, "That she did not need to expect anything from her," etc. Whatever insinuaations may be made against the attorney or Mr. Carson by the contestant, we are unable to see the slightest suspicion that could attach to the doctor or the nurse. No one even attempted to question their honesty and standing in the community and no impeachment of their testimony was even attempted. It seems that such direct evidence stands out so strongly that nothing less than the most convincing circumstantial evidence should be permitted to overcome such testimony. No one could doubt that they were innocent of any knowledge of any wrongdoing. According to their description of what took place, the conclusion is irresistible that Mrs. Carson was able to and did keep in mind all things necessary to qualify her to make a will, and was, at the "very time and in the very act" free to act and capable of acting in the execution of her will.
Contestant seemed to think Mrs. Carson should not have changed attorneys. It does not appear that Mrs. Carson had occasion to employ an attorney many times. It would be difficult to try to account for the reasons why people change or select their attorneys. It may be that Mrs. Carson, after Mr. Carson came back and they were reconciled, thought the daughter and Mr. Dunn had encouraged divorce proceedings too strongly, and then again she might have said some *60
rather severe things about the husband while he was away, and to meet Mr. Dunn again with her husband, or otherwise, knowing she had returned to him, would embarrass her, and then again, as the daughter knew Mr. Dunn so well, Mrs. Carson might have been fearful that the daughter would find out too much about her business in the future, assuming she was angry with her. No attention was paid to a like situation in the Estate ofPurcell,
After a careful consideration of the record we feel constrained to say, in the language of the supreme court in the Estate ofLangford, 108 Cal., at page 621 [41 P. 701, 705], referring to the McDevitt case: "In that case the verdict was against the validity of the will, and the judgment and order denying a new trial were reversed; and it would be inconsistent with the decision of this court in that case to affirm the judgment in the case at bar. Numerous authorities upon the subject may be found in the notes to In re Hess, 31 Am. St. Rep. 665."
Since the McDevitt case was decided so many cases have been decided in this state setting aside verdicts of juries which have condemned wills on the ground of undue influence that to properly note and analyze all of them would fill a volume, but if we have read them correctly they seem to evince a firm, unvarying course to adhere to the principles laid down in the McDevitt case. The instant case is largely a case of "general influence not brought to bear directly upon the testamentary act," and a case also supported by declarations of the testatrix introduced to show "state of mind." We may appropriately say with the court upon the question of general influence, in the early case of Woodward v.James, supra, cited in many jurisdictions and by our supreme court in In re Kaufman,
[2] Undue influence may be established by circumstantial evidence, but "`it must, however, do more than raise a suspicion. It must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator. I think there is nothing beyond suspicion shown here.'" (Estate of Anderson, 185 Cal., at p. 709 [
The undue influence that must be proven to set aside a will, formally and solemnly executed, is clearly defined in the case ofIn re Kaufman, supra. [3] "`Undue influence, however used, must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of the making of the testament. It must bear directly upon the testamentary act. . . . The fact, then, that a testator with such qualifications makes a foolish, unnatural, or unjust will, does not show that undue influence caused the will'" (Estate of Donovan, supra, at p. 394 [73 P. 1082], citing many cases.)
From the evidence it would appear that Mrs. Carson was an unusually well-preserved woman for her age. She appeared to have no organic disease whatever. This is a rare condition for one of her age. No expert testimony was offered to prove that she was weak in any respect, only a few acquaintances questioned her soundness and they, it seemed, had ceased to be friends after Mrs. Carson married, and their opinions could not be stronger than the facts upon which they were based: [4] "The opinion of a witness that a person is of unsound mind can be no stronger than or of superior evidentiary weight to the reasons upon which he bases his opinion." (Estate of Campbell, 46 Cal.App., p. 621 [
The following are some of the cases in which it was alleged undue influence was exerted upon a weak mind caused by old age or sickness or both and the reviewing court held the evidence of undue influence was insufficient: Estate of Higgins,
The following cases show activity in preparing the will by the beneficiary or close relative or agent: A comparison of the conduct of Mr. Carson with the conduct exhibited in the following cases where the will was upheld, will be useful: Estate ofMorcel,
In many of the foregoing cases the person charged with the undue influence actually remained in the room while the will was being made, and in the Lavinburg case, the one charged with the undue influence actually boasted of her general influence over the testator. In the same case the court, at page 543 of the decision, stating a reason why a *65 certain daughter was probably not properly remembered in the will, say: "And in this connection it is well to remember that the testator was not upon good terms with Mrs. Werthman when the will was made." And in a similar quarrel between a mother and a daughter wherein the mother practically disinherited the daughter, the supreme court in the case of In re Kaufman,supra, say: "Lizzie never afterward saw or communicated with her mother. . . . The greater part of the record is taken up with the circumstances of this quarrel between Lizzie and her mother, apparently either for the purpose of showing to the jury that the mother had no sufficient reason therein for disinheriting her daughter, or in order to allow the jury to conjecture that the mother's dislike of Lizzie may have been fostered by her other sisters. Whatever may have been the reason for its introduction, it was immaterial and irrelevant to either of the issues submitted to the jury." The following are some of the cases of undue influence in which powers of attorney and other authority were given, but in which it was held that this in itself does not create a presumption of undue influence. This condition will be found in the following cases, wherein the will was upheld by the reviewing court: Estate of Lavinburg, supra; Estate of Morcel,supra; Estate of Purcell, supra; Estate of Rickey, supra; Estateof Bryson, supra; Estate of Hanlon, supra. The following are some of the cases in which undue influence was denied to be sufficient where the second wife or husband was charged with undue influence and where jealousy and bad feeling resulted in quarrels, etc.: Estate of Morcel, supra; Estate of Rickey,supra; Estate of Langford, supra; Estate of Donovan, supra.
The instances will be found rare where our supreme court has permitted a will to be upset solely upon the ground of undue influence where the charges have been made against the husband or wife. [6] No presumption is permitted to be indulged against this relation in this state, and it is not permitted in most other jurisdictions. Our supreme court, in the Estate ofDonovan, supra, at page 395, very clearly adopted this view: "There is no legal presumption against the validity of any provision which a husband may make in the wife's favor, for she may justly influence the making of her husband's will for her own benefit or that of others so long as she does not act fraudulently, or *66 extort benefits from her husband when he is not in condition to exercise his faculties as a free agent." The Langford case,supra, is full of expressions of like purport and has been approved in later cases. Mr. Freeman, in his notes in In reHess, supra, at page 679, places this right above that of the child: "While the right of children may not stand on the same high footing as that of a wife to be heard respecting a will, still there is no doubt that they have the right to influence their parent by fair argument, or even by entreaty, to make disposition of his property in their favor: . . . so long as no fraud is practiced upon the testator, and no advantage taken of his weakness and his inability to resist, his bounty may be sought by every appeal to his intelligence or his emotions which may lawfully influence his judgment or his affections. He may be flattered, persuaded, or entreated . . . the importunity may be such as no delicate mind could be guilty of: . . . and yet if he yield intelligently, and from conviction, the influence thus operating is not undue: . . . solicitations, however importunate, cannot of themselves constitute undue influence, for, though these may have a constraining effect, they do not destroy the testator's power to freely dispose of his estate." (Citing many cases.) (See, also, 28 R.C.L., sec. 94 and notes.)
Nearly all of the cases wherein the courts have approved the setting aside of the will on the ground of undue influence, the circumstances are shown, not by inference, but by positive proof that the person charged with exerting the undue influence was active in procuring the execution of the will, or was guilty of trying to keep relatives away from the testator, or both, as in the Estate of Tibbetts,
The judgment should be reversed and it is so ordered.
Finch, P.J., and Plummer, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on August 27, 1925 and a petition *68 by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 24, 1925.