198 P. 407 | Cal. | 1921
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *702 This is an appeal from an order refusing the admission to probate of a certain holographic instrument purporting to be the will of Hazel Anderson, deceased. The order was made after formal contest and jury trial. The authenticity of the instrument was not questioned, and the grounds of contest assigned were that it had been executed under the undue influence of the proponent, who was the sole beneficiary and is the appellant here, that it had been executed when the testatrix was of unsound mind, and that it had been revoked. At the trial a nonsuit was granted as to the two latter grounds, and the cause submitted to the jury upon the single issue as to undue influence. Upon this issue the jury found against the instrument, and upon their verdict the order appealed from was made. Of the grounds urged for reversal but two require consideration. They are (1) that the verdict is not supported by the evidence, and (2) errors in the admission of evidence. The first of these grounds necessitates a review of the evidence. *703
The proponent of the will is an aunt of the decedent, and the contestant is the decedent's husband. The decedent had been left an orphan when very young and had been brought up in the family of her aunt. The very closest relations existed between them, fully as close as those usually existing between a mother and an affectionate and tractable daughter, and they regarded each other as if that were in fact their relation. The deceased was a woman of education, intelligence, and individuality, and there is not present in the case any element of the control or domination of a weak or subnormal mind by a stronger or more vigorous personality. There was some testimony as to occasions when the deceased and her aunt had differed about minor matters, some of them purely personal to the deceased, such as matters of dress, and the deceased had given way to her aunt. But there was nothing more shown than the deference which, as between mother and daughter, the younger woman might very reasonably and properly show to the opinions of the older. The case is but one of a close and intimate relation, as of mother and grown daughter, with no more of subserviency on the part of one to the other than may naturally and properly exist in such a relation.
At the time of the decedent's marriage the parties were living in Reno, Nevada. The aunt's husband was managing a general store there, assisted by his wife, and the niece was employed in the store. There she met the contestant, who was one of the principal stockholders of the corporation owning the store, and married him. He was very much older than she, he being sixty-seven at the time and she twenty-seven. He had been married previously, and had, a family of grown children. He was also a man of wealth, while she had nothing.
Something over a year after the marriage, the deceased became pregnant, and in February, 1918, she and her aunt came to San Francisco to make purchases in preparation for the expected child and to attend to some other matters. It had been planned that the husband should accompany them, but his wife informed him that her aunt preferred that they should go alone, and he permitted them to do so. While the two women were thus alone in San Francisco, the instrument in question was executed. The decedent's mother had died in childbirth and the decedent greatly feared the *704 same fate for herself, and the will was undoubtedly made by her because of her approaching confinement and the danger incident to it. Her only estate at the time consisted in some personal belongings and shares of stock of the value of about six thousand dollars in the corporation owning the store at Reno managed by her aunt's husband, all of which the decedent's husband had given her from time to time after their marriage.
The will made by the decedent under the foregoing circumstances gave one-half of her estate to her aunt, and the other half to any child or children that might survive her. If no child survived her, the whole estate was to go to her aunt. The will also named the aunt as executrix, and expressed the wish that she be appointed the guardian of the estate of any child who might survive the decedent. The will also stated that the decedent made no provision for her husband for the reason that he had ample means of his own and needed no provision from her separate estate.
There is no evidence of the aunt importuning the decedent or otherwise exercising any pressure upon her either to make a will or to make one in her aunt's favor. All that appears is that the decedent, before coming to San Francisco, had expressed a wish to make a will and had told her aunt that she wished her to have what she had when she died. The sole witness as to the immediate circumstances under which the will was executed was the aunt, who was called for the purpose of testifying upon the point by the contestant himself. He is, of course, not bound by her testimony (Code Civ. Proc., sec. 2049), and the jury was at liberty to reject any of it that did not seem to them worthy of belief, but rejecting it, there is no evidence to take its place and, as was said of a similar case in Estate of Kilborn,
There was also considerable evidence as to events occurring subsequent to the execution of the will, but for the most part this evidence is wholly immaterial upon the issue of undue influence, and yet is of a character to influence the jury strongly against the will, since it indicates that the decedent immediately before her death had changed her intention as to the disposition of her property and desired to revoke the will, a desire which her untimely death alone prevented her from carrying into effect. It seems that at the end of their stay in San Francisco the two ladies went to Sacramento, where they were met by the decedent's husband. From there the aunt returned to Reno, and the niece and her husband went to Santa Rosa pursuant to a plan they had to settle in California, if they found a place, agreeable to them. They found Santa Rosa agreeable, and the husband purchased a home and a farm there at an aggregate cost of about eighteen thousand dollars. These he had conveyed to his wife, so that at her death her estate consisted of this property as well as of the six thousand dollars in stock and the personal belongings which she had at the time she made the will. The husband and wife remained at Santa Rosa, the aunt visiting the niece but once and then for but a few days, and at the suggestion of the husband in order that someone might be with his wife while he was away on business. Some three months after the making of the will, the expected child was born, but born dead. The mother was able to be about within a few days, but blood *706 poisoning then came on and she died on the eighth or the ninth day after the birth.
A nurse who was in attendance testified over the objection of the proponent of the will that some days after the birth she found the decedent by the side of her bed praying and repeating over and over, "Dear God, just now forgive my sin, and help me to make it right with Mr. Anderson."
The contestant, over the objection of the proponent, was permitted to testify to a number of conversations with his wife occurring after her confinement. According to his testimony, she several times requested him to get an attorney who might draw some papers undoing an unjust act that she had done toward him and which her aunt and uncle were the cause of her doing. He put her off, saying that they could go to Reno and fix the matter directly with the aunt and uncle. In reply to this suggestion she asked that in case they went to Reno he protect her, as her aunt and uncle would be very cruel to her. Two days before her death she prepared a preliminary draft of a letter to her aunt and also a letter. The letter was mailed by her husband at her insistence, but was not received until after her death, and on its receipt was destroyed by her uncle. The preliminary draft read:
"June 13 — 1918, Santa Rosa, Cal.
Dear Auntie:
"Will you kindly forward the original will which you witnessed in San Francisco when we were down there. I have not been able to sleep at night and feel when I get these papers here and get that ignoble act undone.
"Hope you and children are well.
"HAZEL LENORE ANDERSON."
The letter itself, according to the contestant's testimony, read:
"Santa Rosa, California, June 13, 1918.
"Dear Auntie: Will you kindly forward those papers, which at your request was drawn up in San Francisco. I wish to revoke that ignoble act done, and forward same to me immediately. I have not been able to sleep since you left me.
"HAZEL LENORE ANDERSON."
Although the decedent had expressed her wish to her husband to undo an "ignoble" act which she had done toward *707 him, and although the husband read both the foregoing preliminary draft and the letter itself before the letter was mailed, and the matter was the subject of more than one conversation between them, the fact, according to his testimony, is that he did not know that his wife had reference to a will she had made, and did not know until after her death that she had made a will.
The foregoing being the facts land circumstances of the case as shown by the evidence, the question presented by the appellant's first contention is, Are they sufficient to prove affirmatively, as a conclusion fairly to be drawn from them, that it was actually the fact that in executing the will the mind and will of the testatrix were overpowered by her aunt? Viewing the question purely as one of fact to be determined from the facts and circumstances shown in evidence, it would seem plain enough that the evidence is sufficient to raise only a suspicion, if even that, that the mind of the testatrix may have been overpowered, and is not sufficient to justify, as the basis for judicial determination and action, the definite conclusion that it was in fact overpowered. It is no easy thing to overpower the mind of a normal person in full possession of his senses by the mere pressure of importunities and entreaties, and there is certainly not even a suspicion in the present case that any more drastic or compelling form of pressure was used. [1] The mere fact that one person has been influenced by the arguments or entreaties of another is not enough to make the influence an undue one. It is not undue unless the pressure has reached a point where the mind of the person subjected to it gives way before it so that the action of such person taken in response to the pressure does not in fact represent his conviction or desire, brought about perhaps by argument and entreaty, but represents in truth but the conviction or desire of another. As was said in Estate ofDonovan,
It is doubtful if these circumstances would justly raise even a suspicion. Much less do they come up to the test prescribed in In re McDevitt,
Applying this test, what circumstance is there in this case which is "inconsistent with the claim that the will was the spontaneous act of the alleged testatrix?" The only one upon which stress is laid is the provisions of the will itself, and in particular that it should give the estate to the decedent's aunt instead of to her husband, from whom she had received it all. But when we consider the small amount of the estate she was disposing of, consisting as it did when she made the will only of personal belongings and stock in the store corporation to the amount of six thousand dollars, and the fact that her husband, as she says, had ample means, it was not unnatural that she should wish her little to go to her aunt and foster-mother. This situation was considerably changed by the subsequent very substantial gifts to her of the home and farm at Santa Rosa, and it may well be that it was due in some part to this that she subsequently desired to revoke the will. But the validity of the will must be determined by the situation as it existed at the very time it was executed, and the situation then was that she was disposing of a comparatively small amount. Stress is also laid on the provision of the will requesting that the aunt be made guardian of her child. This also is a not unnatural provision when we consider the ages and sexes of the parties. The husband was sixty-nine and a man, and the aunt was forty-seven and a woman. It was not unnatural that the testatrix should expect and hope that it would be the latter who would have the bringing up of her infant child in case she herself should pass away. The only feature of the will whose naturalness can be at all justly questioned is not that it gives the testatrix's estate to her aunt instead of to her husband, but that it gives one-half to her aunt if a child survives, instead of giving it all to the child. But here again when we consider the small amount that would be left to the aunt in such a case, some three thousand dollars, and the burden that would be assumed by the aunt, if the raising of the child were *710 entrusted to her, any unnaturalness of the will in this respect largely, if not entirely, disappears.
The circumstances of this case are not dissimilar from those in numerous other cases which have from time to time been presented to this court, and so far as we are aware it has been held without exception that such circumstances are insufficient to justify a finding of undue influence. In the very case from which we have just quoted of In re McDevitt, the facts were that the testator was an old man, an invalid suffering from cancer from which he finally died, a bachelor living with a brother, that his will was executed at the house of this brother and left everything to him and to his children to the exclusion of the children of two deceased brothers living in the same city and with whom the testator was on friendly terms. There was also evidence that the brother, who was the beneficiary, had abused the testator and that the latter was very much afraid of him. The only particular in which the facts in the case differ from those before us in a respect favorable to the contestant here is that the brother was not present, even outside the room, when the testator was consulting his lawyer and the will was executed. The jury found that the will was executed under the undue influence of the brother, and on appeal the verdict was set aside as not supported by the evidence. Among other things pertinent to the present discussion contained in the opinion is the following: "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 In re Langford,
In Estate of Calef,
In Estate of Higgins,
In Estate of Lavinburg, 161. Cal. 536, [
In Estate of Morcel,
In this immediate connection, the decision in Estate ofPurcell,
In Estate of Gleason,
It would serve no useful purpose to discuss the comparatively few decisions of this court in which an order setting aside a will for undue influence has been upheld. Suffice it to say that in practically all of them there entered either the element of a weak, unsound, or impaired mind, including a mind impaired by great physical weakness, or the element of a will procured by one who occupied a fiduciary relation to the decedent, who was not a natural object of the decedent's testamentary bounty, and who yet benefited substantially by the will. Examples of the first class of cases are Estate ofSnowball,
The contestant contends that because of the intimate and affectionate relation which existed between the decedent and her aunt, there arises a presumption of undue influence. This feature was present in most, if not all, of the cases which we have just reviewed at length, and it is apparent that if there be such a presumption here and it is controlling, it was likewise present in those cases and should have been there held to be controlling, and a different result reached. In many of them, furthermore, the same contention as to a presumption was made and was discussed and overruled. (See, for example,Estate of Langford,
[4] It is also claimed, however, that there was present in the case at bar the element of activity on the part of the aunt in the procurement of the will. The only evidence of such activity is that she obtained a letter of introduction to the lawyer who prepared the draft of the will and went with the testatrix to his office and there remained in an outer room during the interview between the testatrix and the lawyer. But this is not the activity in the procurement of the will which is necessary in order to give rise to a presumption of undue influence. The activity must be in the use of the relation for the overcoming of the will of the testator. As was said inEstate of Ricks (to quote again), "there must be some proof, in addition to the relation, of facts or circumstances showing the use of that relation at the time the will was made overcoming the free will and desire of the testator, in order to invalidate the testament."
It is also worthy of note in this connection that inEstate of Morcel,
Our conclusion then is that the evidence is insufficient to sustain the verdict of undue influence.
[5] As to the declarations of the decedent admitted over the objection of the proponent, the contention that their admission was error must also be sustained as to some. Such declarations were hearsay, pure and simple. The only exception to the rule against hearsay within which they could come is the exception which admits declarations indicative of the declarant's intention, feeling, or other mental state, including his bodily feelings. But such declarations are competent only when they are indicative of the declarant's mental state at the very time of their utterance, and only for the purpose of showing that mental state. It follows from this that unless his mental state at that time is material to the issue under investigation, the declarations are not admissible, even though they do show his mental state at that time, not because they are not competent for that purpose, but because that purpose is not germane to the issue. These general propositions are settled by a multitude of authorities, including some where the issue was one as to undue influence in the making of a will. (See In reCalkins,
[6] The declarations in the present case are of three sorts. First, there are the declarations indicative simply of the fact that at the time they were made, some three months after the execution of the will, the testatrix had changed her mind in regard to the disposition she wished to make of her property, and regretted the will she had made. If that change of mind and regret had been material, evidence of the declarations would have been competent. The point is that the fact that she had changed her mind and regretted what she had done was not material. It made no difference whether she had or not. The only evidentiary bearing of the fact on the issue before the jury, that of undue, influence at the time of the execution of the will, lay in the possibility of reasoning from the fact that the testatrix had changed her mind and regretted what she had done that she had possibly acted only under undue pressure in the first instance. But this bearing is exceedingly slight and remote, or, in other words, the probative value of the fact that she had changed her mind as showing that she had not acted freely in the first instance, is almost, if not quite,nil. On the other hand, the fact that the testatrix had changed her mind was one which, if put before the jury, would almost certainly affect them greatly, and would in and of itself be given great weight by them, regardless of what its bearing on the real issue before them might or might not be. [7] Under such circumstances, where the true evidentiary bearing of the evidence is at best slight and remote, and yet the evidence is of a nature such as to make it very prejudicial to the party against whom it is offered, the evidence should be excluded. (See Adkins v. Brett,
[8] The second sort of declaration is the one contained in the letter by the testatrix to her aunt to the effect that the will had been made at the latter's request. This was not properly admissible for a reason just the converse of that applicable to declarations of the first sort. The fact declared, that the will was made at the request of the aunt, did have a very direct bearing on the issue in the case and was quite material. But the declaration of this fact was *720
not admissible because it was merely a declaration as to a past event and was not indicative of the condition of mind of the testatrix at the time she made it. It was, therefore, not within the exception to the hearsay rule. (Estate of Jones,
[9] The third sort of declaration is the request by the testatrix of her husband that if they returned to Reno he protect her against her aunt and uncle, as they would be cruel toward her. This is the only declaration which meets both the requirements necessary in order to bring a declaration within the exception. It (a) indicated her then state of mind toward her aunt, and (b) her then state of mind as so indicated was material, since the fact that she then feared her aunt had a reasonably direct bearing on what her mental attitude toward her aunt may have been at a previous and not far distant time, when she executed the will.
Order reversed.
Lennon, J., Shaw, J., Lawlor, J., and Angellotti, C. J., concurred.
Rehearing denied.
All the Justices concurred.