95 Cal. 17 | Cal. | 1892
This proceeding is to contest the will of decedent, and the appeal is taken by the beneficiaries under the will from a judgment in favor of the contestants, from an order refusing a new trial, and from an order refusing to dismiss the proceeding on the ground that the judgment was not entered within six months after its rendition.
Charles McDevitt died on the 28th of February, 1890, at the age of sixty-five years. The will in question was executed September 27, 1889.
The testator, at the time this will was executed, was an invalid, suffering from internal cancer, from which he finally died. He seems, however, not to have been so ill as to prevent his going out. One of the contestants, James McDevitt, testified that he and his family saw him nearly every day until three or four months before he died, and further, “ I saw Uncle Charlie in our yard about a month or so before he died. He looked sickly then, and was as white as the wall. He died by inches.”
Deceased was at the time living with his brother An
Deceased was a bachelor. He was a native of Ireland, and it appears that he had at one time three brothers and a sister living in San Francisco. The brothers were all married. Two, Michael and James, died before the testator, each leaving several children, the contestants herein.
James McDevitt, the father of some of the contestants, and the deceased were at one time partners in the draying business in San Francisco. The business prospered, and they purchased a ranch in Sonoma County, which was managed by the deceased, while James managed the draying business. About ten years before the testator’s death there were business differences between himself and James, which resulted in litigation, and the dissolution of the copartnership. Prior to that time, when visiting the city, which he did two or three times a year, the testator lived with his brother James. At the time of the litigation he went to live with his brother Andrew, and continued to reside there until his death, about ten years later. After the dissolution, James became the owner of the ranch, and Charles of the real estate, which now constitutes his estate.
The deceased left as heirs a sister, residing in Massachusetts, a brother, Andrew, at whose residence he died, seven nephews and nieces, children of his deceased brother James, and five nephews and nieces, children of a deceased brother Michael. All except the sister resided at San Francisco.
In the will, executed, as we have seen, five months before his death, the deceased gave one thousand dollars to his sister, and all the residue of his estate to his brother Andrew and members of his family. The will contained the following: “I make no provision for the children of my deceased brother James McDevitt, nor those of my deceased brother Michael McDevitt, and
The contest is upon the ground that the will was procured through the undue influence of Andrew McDevitt, in this, that decedent had, prior to the execution of the will, for several years been living at the house of Andrew, and had become subject to the wishes and much in fear of and dominated by him; that at the time decedent had been sick and suffering, and became enfeebled in mind and body, and while in that condition was not permitted by said Andrew to see and converse with any of his relations except the immediate family of said Andrew, and was falsely told by said Andrew that his relations,' except said Andrew and his family, cared nothing for him, and he ought not to do anything for them, and was urged and importuned by said Andrew, while in said condition, to make a will giving all his estate to Andrew and his family; that, unable to resist the importunities, decedent made his mark to said will.
The contest was tried with a jury, and by stipulation the only issue was: “ Did the said Charles McDevitt, at the time of signing the instrument offered for probate, sign or execute the same under undue influence of Andrew McDevitt?” To which the jury answered yes, and the findings of the court were in accordance with the verdict.
The appellant contends that the statement of the contest is insufficient, because in the specifications of the acts of undue influence the past tense is used; but I think the concluding sentence, “ that at said date, and while in said condition, and unable to resist the importunities of said Andrew, deceased made his mark to said pretended will,” sufficiently connects the alleged undue influence with the testamentary act.
The appellant makes several points, either of which, he contends, requires a reversal. After a careful examination, I am convinced that the evidence is insufficient, as matter of law, to justify the verdict and decision.
It may be premised, in the first place, that sixty-five is not such an advanced age as of itself to suggest senility, and that the evidence shows, without conflict, that the testator was a man of sound mind and memory, and of strong will. There is no evidence which tends to show impairment of intellect, unless bad health necessarily has that effect.
In the next place, there is no proof whatever that he was urged or importuned by Andrew or any one else to make a will, or that it was ever suggested by any one that he ought to give his property to Andrew or any one else. It does not appear that the subject of the testamentary disposition of his property was ever mentioned except to contestants, and Andrew testified that he did not know that a will had been made until after the death of the testator, who had sent him, as he says, to get a lawyer to look after his rents; neither Andrew nor any member of his family was present when the will was executed, although it was at Andrew’s house.
The will, when executed, was taken away by the attorney, and there was no proof that any member of Andrew’s family knew of it.
The witnesses to the will testify to the evident capacity of the testator, the careful reading of the will, and the emphatic approval by the testator of the clause which expressed his intention to exclude the contestants.
Upon the question whether decedent was not permitted to converse privately with contestants, the testimony on behalf, of contestants shows, I think, beyond all controversy, not only that the charge is not sustained, but that the contrary is true. No relative was ever denied access to deceased, but on the contrary, whenever any called to see him, they were politely received and kindly treated. Nor do I think the effort to show that Mrs. Andrew McDevitt always remained present during such
James McDevitt, son of James McDevitt, deceased, brother of the testator, testified: “Afterwards [after his father’s death] we saw him nearly every day until three or four months before he died.” And again: “I saw Uncle Charlie in our yard about a month or so before he died.”
There is no evidence tending to prove that Andrew McDevitt, or any one else, ever told decedent that none of his relatives except Andrew and his family cared for him. There is, however, testimony to which that construction may be given, so far as the children of James McDevitt are concerned, which is hereafter set out. Giving this the full effect that can be claimed for it, it still utterly fails to prove the allegation in the statement of the grounds of contest.
To prove the friendly relations existing between the decedent and the contestants, they were allowed to put in evidence several expressions of the deceased as to his testamentary intentions. That these expressions as a
None of these expressions as to testamentary intent were sufficiently near the testamentary act to constitute them part of the res gestee. One instance is shown, however, of such declarations, which must have been after the execution of the will, and within two or three months of the time. I think there are no others brought within a year of that act. Charles McDevitt, son of James Mc-Devitt, testified that he went to see decedent at Andrew McDevitt’s house in regard to the rents; that after some conversation, Uncle Charlie said, when he saw Uncle Andrew coming: “’Sh! say nothing; it will all be yours by and by.....Q. Well, did he drop the conversation with you, or did he drop it after Andrew came up? A. He dropped it. The deceased acted as though he were afraid of Andrew; never seemed to talk freely except when he was away.” On cross-examination he said the remark was: “Go ahead, you folks will have it when I am gone.” The witness also stated that this happened two or three months before his uncle died. This witness also testified that he called three times during his uncle’s
Whether by this statement the decedent intended to deceive the witness, or at the time intended to execute a new will, is alike immaterial. In neither case would it tend to prove that the will which had been executed was procured by undue influence. For that purpose the evidence would have been incompetent, except in connection with evidence tending to show fraud in procuring the will, or mental unsoundness. In the last case it might tend to prove that the alleged testator did not know the nature of the will he had executed. There is no chance for such supposition here. Although there is a charge of mental weakness in the contest, there was no proof tending to establish it unless proof of physical infirmity constitutes such proof. That it did not go to this extent here we have seen. On the other hand, it is shown that he was aman of sound mind and strong will. The attending physician, and the attorney who drew the will, and another subscribing witness, show beyond doubt his sound mental condition at the time, and thorough understanding of the will. Under such circumstances, this evidence, and all other of like character, is entitled to no weight. (Waterman v. Whitney, 11 N. Y. 157; 62 Am. Dec. 71.)
Another witness, whose testimony has already been "alluded to as showing an effort to prejudice the alleged testator against some of his nephews and nieces, and who also stated facts tending to show that decedent greatly feared his brother Andrew, is Charles McDevitt, son of Michael McDevitt. He was a boy about thirteen years of age when his mother died. His Uncle Charles, on various occasions, took great interest in him as a bright lad, and one who was not strong, and therefore unable to do hard work. Several times it is shown his Uncle Charles had expressed his intention to assist in educating him, and had declared that he would provide
He says his Uncle Charley looked after his schooling, bought books and clothes, and furnished him spending money, etc. Further: “I heard Andrew, after he would find out that Charley had been down to see James’s folks on Sansome Street, abuse him about it. This would only happen after the tenants in the house, who used to play cards with them evenings, had retired.....He would say, ‘I heard you have been down to your brother Jim’s to-day’; and Uncle Charley would not make any reply, and Uncle Andrew would say, ‘You damn dirty old fool, don’t you know you ought to have better sense than to go there and see those people? You will allow those girls [having reference to Uncle Jim’s daughters] to kiss and love you, and sponge all they can out of you; but it is not for love of you, but for love of your money, and, you damn old fool, you have not got sense enough to see through that.’ . . . . " Uncle Andrew repeatedly told Uncle Charles, ‘ Why, damn you, only for the way I went to court and lied like I did, and went around at the time of the lawsuit, you would not own one half of that property that you now own, that is your possession.’ Charles would never make any answer. Uncle Andrew used to call Uncle Charles an old crawler.....Generally in the morning we had a habit of getting up at half-past seven or a little later, and if my Uncle Andrew would get up before me, my Uncle Charley would say, “How are you?’ and I would say, ‘All right.’ ‘Sleep good?’ ‘All right’; and my Uncle Andrew would be in
He also testified that his Uncle Andrew used to beat his children too, and that when his Uncle Charley said he had applied for letters of guardianship for him, the witness, Uncle Andrew abused them both, saying that his brothers and sisters were grown up and working, and able to support him (the witness), and he ought to go to them, and not to Uncle Charley; that he did not tell his father, or his brothers or sisters, about the beatings he received, only complained to Uncle Charley.
I think I have now made a full and fair statement of the contestants’ case, and that the extracts given include all that can be claimed to bear upon the question whether Andrew McDevitt exercised or attempted to exercise any influence over the deceased as to the testamentary act. Does this testimony, admitting its entire truthfulness, taken in connection with the other uncontradicted evidence, make out a case for the contestants? I think it does not.
The other facts have been already suggested. They are the undoubted mental soundness of the testator,
If efforts were made to prejudice the testator against the contestants, it is shown only by the testimony above set out, given by the younger Charles McDevitt. It had reference only to the children of James, with whom deceased had had trouble and litigation, and does not seem to have reference to testamentary favors which these children might expect, but to Andrew’s fear that they were getting money from his brother Charles. It was three years, at least, before the execution of the will; but had they been made at the very time, they would not have been sufficient even then, of themselves, to throw the burden of proof upon the proponents, the mental competency of the testator being as clearly proven as in this case.
As to the statement that the testator lived in fear of personal violence from his brother Andrew, it is simply incredible. Nor is it necessary to discredit the witness to come to this conclusion. Allowing that he said all that the witness affirms, it shows that he very properly refused to interfere with the order maintained by Andrew in his own house, and his statement of fear was to to be rid of complaints. I understand the matter differently from the boy. To me it seems probable from the statements that his uncle approved of the punishment. What brutes it makes of both to suppose that Charles, when nothing had been said to him by Andrew about it, gratuitously believed that he, a man over sixty years of
The will is not an undutiful will. Hot to divide property equally among nephews and nieces does not make it an inequitable will. An uncle is under no obligations, ordinarily, to provide for his nephews, either when living or by his will. Failure to name them in the will does not, under the statute, raise a presumption that they were forgotten. Circumstances may be such that failure to provide for one who is a stranger in blood may seem inequitable. Ho such circumstances exist here with reference to any of the contestants. It has been held, however, that the mere fact that children are unprovided for and the estate given to strangers does not throw upon the beneficiaries the burden of proving fairness. (Redfleld on Wills, 526, and cases cited.) The will is not at variance with natural instincts. Charles McDevitt, the alleged testator, had no descendants, no one for whom a natural duty rested upon him to provide. He had quarreled with his brother James, and had had a lawsuit with him, which must have been somewhat bitter. From the testimony of young Charles McDevitt, we must infer that Andrew, in that quarrel, had been a
Is this will, executed under such circumstances, unnatural or inequitable? I think not. This being so, then I say that the testimony of the contestants, in connection with the clear and uncontradicted testimony that the will was dictated and executed by an understanding mind, in the absence of apparent restraint or influence, does not raise a presumption that Andrew McDevitt procured its execution by the use of undue influence.
We are not called upon to approve the will, and may regret that the boy Charles was not provided for; but
Although I do not think it of special interest here, it is well to remember that one has a right to make an unjust will, an unreasonable will, or even a cruel will. Generally, such questions turn our thoughts, as they are often intended to, from the only question at issue, which always is, only, is the will the spontaneous act of a competent testator?
Of course juries lean against wills which to them seem unequal or unjust. But the right to dispose of one’s property by will is most solemnly assured by law, and is a most valuable incident to ownership, and does not depend upon its judicious use. The beneficiaries of a will are as much entitled to protection as any other property owners, and courts abdicate their functions when they permit the prejudices of a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what was just and proper.
General influence, not brought to bear upon the testamentary act, however strong or controlling, is not undue influence. There must be proof that the influence was used directly to procure the will, except in those cases where the beneficiaries or parties instrumental in having the will executed sustained a confidential relation to the testator. This case is not within the exception. In the long list of cases I have examined, the only further exception I find is, that it has sometimes been held that when a testator is weak, physically and mentally, and those having exclusive access to him have procured what may be called an unnatural will, — one which we would conclude would be against the natural instincts of the testator, —• a presumption is raised against the will.
Evidence must be produced that pressure was brought to bear directly upon the testamentary act; but this evidence itself need not be direct. Circumstantial evidence is sufficient. 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
As to the order made after judgment, it is enough to say that I do not think this court should interfere with the action of the trial court.
I think the judgment and order denying a new trial should be reversed, and a new trial ordered, and that the order refusing to dismiss should be affirmed,
Belcheb, C., and Vanclief, C., concurred.
The Count. — For the reasons given in the foregoing opinion, the judgment and order are reversed. Motion to dismiss denied.