*1 Div. Jan. Dist., 16649. One. 1949.] Second No. [Civ. WILLY POHLMANN, Deceased. Estate of MINNA SARA NASCHEL, POHLMANN, Appellant, v. LUCIE Respondent.
Joseph Scott, J. Ziemann and Cuthbert J. Scott Howard Appellant. for . Respondent
Joe and Morris Orloff J. Pollack for WILSON, assigned. This proceeding J. by was instituted respondent probate Lucie Naschel contest the of a docu- purporting ment holographic by to be a will executed dece- dent February 14, Minna Pohlmann Sara on while residing Berlin, Germany. in instrument, The which its terms devised all property proponent-appellant, decedent’s probate by was offered for will and as the last testament ground decedent. The contest is on the of duress and undue alleged influence pro- to have exercised on decedent been ponent who was at the date of the will a of Cuba. resident
n and and sister are are brother proponent Contestant and tried only law of decedent. contest heirs at made favor of jury. Findings of fact were without a court denying petition judgment was entered contestant from, (cid:127) pro- alleged will, judgment probate of the for ponent appealed. has the memorandum
Appellant, referring to a statement made jndge in which reference is opinion of the trial was “a woman of some determination” evidence that decedent 700, 707 quoting Anderson, 185 Cal. from Estate easy thing overpower the mind of 407], “It no that the mere person possession full his senses normal pressure entreaties,” importunities contends nigh at impossible well improbable have been miles he could have exercised distance of several thousand ' decedent to such an extent to cause duress and influence on bequeath represent in a manner that did her to estate expression of free and individual her desires. How such as found court could have been a result notwithstanding separating the accomplished,' the distance parties, comprehended the fact dece- can be better the faith that was under the dent condemnation Germany. political party having dictatorial then surviving daughter, parties contest, this Her son and religious living in are of the same belief. Decedent was at persons being Berlin a time when thousands of were mur- deported camps dered or to concentration other reason yearned than that adhered to that same belief. She by coming avoid such a fate to America. She desired escaping persecution, needed her son’s' assistance in pestilence daily surrounding and death her. Menaced as she living expectation was and of the doom that had befallen many others, ‘‘pressure importunities so and entreat- need have been such force order to influence ies”' necessary and coerce her as been would have if she had been that, 'living government in normal conditions and under a *4 exercised its the manner of civilized nations. a decedent made will which found that court The handwriting, signed in her own but that and written, dated prepared by from a document for' word copied word purpose; for could to her that that decedent Willy and mailed language; neither, English understand the nor read, write and probate was made executed at filed for that the will through the' influence the duress 'insistence under Willy; persuaded that he induced and his mother to make probate execute will offered for and to disinherit by stating letters, telegrams Lucie to decedent numerous cablegrams necessary that it was that she execute such leaving Germany will in order to enable him to assist her in States; and come to the elderly United that decedent was an woman great who was under mental strain of her reason desire escape and from Germany persecution; Nazi Willy advantage that took of her mental condition and her great Germany desire to leave and caused her to believe that in order to do so it necessary would be for her to make a will leaving everything to him and Lucie; Willy to disinherit that threatened his mother that if she failed or refused to execute disinheriting will leaving Lucie and the entire estate to him he bring would not her out of Germany, nor would he help her to leave that country; that susceptible decedent was to the influence, suggestions threats and Willy, which were the basis for her making, executing and placing in the hands Willy sought the will to be admitted probate; Willy poisoned the mind against of his mother through Lucie letters cablegrams among stating, things, other that Lucie would not assist, cooperate or bring efforts to decedent out of Germany; advised his sister Lucie that he had permit sent a entry for the of his mother into Cuba when in truth and in fact permit no such had sent; been that such advice was sent to Lucie for purpose lulling her into the belief that her mother would soon be able to Germany; leave did not want his mother to Germany leave the reason that he would have no hold over her if she arrived country; in this that the will was executed under duress, fraud misrepresentation, and undue appellant influence of Willy. only specification of assigned by error appellant stated thus: There is no substantial evidence to sustain finding of the trial court that the instrument offered for probate as the last will and testament of the decedent was procured by through the undue influence proponent ’ ’ Willy Pohlmann.
The court cannot set aside a will and leave the upon intestate unless substantial evidence. appeal On weight accorded the evidence and province reviewing court are the same in a will contest in other civil case. Trefren, 86 Cal.App.2d *5 568 221, 574, Bristol, 223 ; Estate Cal.2d P.2d 23
[194 575] of cited.) 689], and cases P.2d [143 light the must view evidence in the this rule we Under in her respondent and resolve all conflicts favorable to most reasonably can or inferences be deduced When more favor. one reviewing power court is without to substitute from facts a the If there is those of the trial court. sub- deductions for its of the trier of evidence to sustain the conclusions stantial “begins and a determination as power ends with facts our evidence, substantial contradicted to whether there reached uncontradicted, support which will the conclusion jury. the is without a jury” byor the court when trial 822, 543 Llewellyn, Cal.App.2d 83 P.2d of Bristol, 419]; supra.) 191 P.2d Estate of delimited, our shall consider but Since is thus we analyze given weigh We the evidence shall evidence. respondent’s allegations order determine support to requirement being An substantial. whether answers the analysis appellant of the offered would serve evidence has purpose weighing the task of the evidence been since performed by one of our func- the trial court that is not and contradictory The of that introduced tions. recital evidence by respondent attempted will not inasmuch as neither such therefrom, evidence, might nor inferences that be drawn judgment respondent’s evi- if would cause a reversal supra.) (See Llewellyn, Estate is substantial. dence foregoing rules the evidence we shall examine Under if it is of such support offered in the contest ascertain judgment substantiality findings and the sustain the thereon. based executed, she age 76 when the will
Decedent’s was was years at time in a old death concentration Pohlmann, of de- Adolph husband camp Czechoslovakia. his parties contest, father of to this deserted cedent and in 1897. never returned family and came to America He country. this All Germany. also came to Two of his brothers Angeles. died and left resided in Los One brother three trust, estate one-sixth of was devised substantial leaving property all his Adolph. died in latter equal Minna, two children shares to his wife predeceased if him. Distribution was ordered wife Only part distributed in 1941. a small the widow Germany between States the war United reason of Custodian, sub- Property the Alien was seized remainder upon application ject provided manner law to return proper parties. 1915 when she Wolf Naschel in Contestant married por- own in another her husband established their residence decedent resided. city from that in which tion of Berlin daily her about twice telephoned mother and visited She sup- to her mother’s Although a week. did not contribute she *6 her and other articles. port, gifts clothing she made to leaving Germany, and her husband Before and while Lucie Berlin, Willy still residents involved in dif- were became Gestapo husband, her at their ficulties and Lucie and personal risk, days apartment. him in their harbored for 14 1938,
In to Lucie’s husband obtained a visa Czechoslovakia some time later a visa to Switzerland. and Lucie obtained they Thereafter met in Switzerland came to the United and States, arriving November, York 1938. in New When Lucie Germany say goodbye mother, left did not her nor did to she By existing in her husband. reason of the conditions Ger- many at lawyer that time were their to advised anybody to impending departure. talk about their Upon arriving New her York Lucie father but wrote reply. Angeles received no In she came to Los where discovered seriously she that he had been ill and had died on January year. 1st of that
About a month after her arrival in Los Angeles Lucie began proceedings bring to mother Willie out of Germany. February, 1939, In she Willy, cabled “Applied traveling papers you, for for get should I the traveling papers Willy for mother?” wrote his sister, “Cable from 23 Feb- ruary received, time being for the apply don’t for immigration papers for mother.” Germany He desired to leave himself dangerous wrote but that would it to obtain a visa for his mother at the same time.
Willy arrangements testified that were made to obtain A'isafor his mother because his was working father on the matter. He kneAvthat his father was dead at that time. The made offer assistance was Lucie more than a month after expended her father’s approximately death. She $1,000 in Willy’s efforts. knowledge of his father’s death is shown prior leaving the fact that to his for the United States Willy took his embassy mother the American in Berlin attorney prepare power attorney had an giving practically complete control over in dispute. the estate Before drafting attorney the document the attorneys wrote in Los concerning Adolph’s
Angeles estate. and secured information Willy’s prepared signed This decedent document was he had presence. testifying in he at first denied In court changed attorney purpose known the of the but that he would testimony admitted knew meant he my.mother.” belonged everything “have take care writing not to leaving Before Berlin after his sister Willy the latter he would mother, obtain a visa for their told Germany.” “get her a can There is no evi- visa so she leave dence that Lucie’s offer of he told his mother of assistance. that he had arriving Cuba, Willy
After advised Lucie mother, he done so. sent a visa in fact had not to their but While in he made no to utilize the assistance Cuba effort might organizations have aided Jewish Germany. departure mother’s wrote that Lucie was testified he his mother although any money anything her, spending doing to assist her instance previously Lucie had written that at attorneys out Angeles trying bring Los were Germany. obtaining the visa appears thus Lucie was
It while Willy, opposed obtaining of one for his mother *7 falsely represented and that Lucie he had sent he that only had but permit to his mother when not done so he containing sending to his untruths about letters mother plenty sister. In those letters Lucie had his he stated money, no although he was at in and had that time Cuba knowledge of her financial condition. attorney
Appellant states that was executed Willy respect out of her decedent to to the wishes Willy previously husband who had asked to come to Los Angeles management of There and assist in the his affairs. nothing Adolph is in the record to indicate that ever ex- Willy charge pressed desire that should take of his mother’s Adolph’s manage interests after death or that he should Adolph provided property estate. in his will his Since that go equal should to his two children in shares in the event him, may if predecease presumed "wife should it be she acting response to her husband’s wishes she would given Willy have over For entire control her estate. may presumed the same also would have reason it that she bequeathed expressly estate to two children instead of disinheriting Lucie. previously to the exercise
Furthermore, it is clear that Willy mother and taking on his effect of the influence of Germany she unless his threats to allow her to remain in Lucie complied intended that demands, with his Willy had led property apparently should in her share acquiesced This mother to believe that he desire. clearly is to Lucie dated indicated a letter from decedent April 12, Lucie I have 1940, in which she said: “Now dear writing Willy right transferred disposition to our all Willy I arranged way and have will not for- in such a you get financially; promised has me.” that is what our That at a later date Mrs. Pohlmann was induced to be- Willy’s lieve disparagement statements in of his sister example indicated For letters which she wrote to Lucie. again one she advised the latter to “make friends your you. Willy very badly brother because . . he talks about every you enough writes me in him letter that did not do Angeles.” Los let- She made statements in other similar ters daughter. Willy reports to her knew made concerning justified by his mother facts. Lucie were not He knew Lucie hun- expended husband had several Germany dred arranging departure dollars in for his from Adolph that she $4,000 had obtained from the estate of Pohlmann purpose for the to the bringing their mother United States. representations
False fraud if the evidence constitute they designed shows were the testator to and did deceive into making a he will different its terms from.that which although have misled, made had he not there been proof pressure upon were used as the mind the testator. Newhall, Cal. 231, 28 778].) pressure A.L.R. on In the instant case the decedent’s do strongest mind was of nature—she must her son’s bidding permit hands he would her to die at the enemy. of their common
The evidence shows that the relations between his mother were not they quarreled harmonious and that frequently departed before Germany. Depositions of *8 two witnesses were taken Berlin. Erna Loewenstamm tes- Willy tified that after left Berlin she saw documents sent him mother, to his one of which was a will. The letters from Willy to his mother were shown the latter to the witness. It was stated in one of the letters that “he would be able get Germany receipt her soon as he is out of as
will making him stated to the witness sole heir.” Decedent States; that her her in the husband left an estate United- will, him making sole son then sent her of a “her forms ’’ him. heir, copy sign which and send back to she was to very angry her The witness testified that decedent was son at the he be heir and time because asked to made sole consid- she was what to after weeks of do; undecided believing that copy will, eration she decided to and send the only get was the means which she could the United States. English Decedent witness showed the a will German and Willy’s The wit- and showed letters from United States. sign “I her, ness read will. Decedent have to said to my necessary papers will or else for son can’t me the send my departure The letters which the to the United States.” by Willy witness saw signed were Pohlmann and the witness knew handwriting. in his were by deposition Alexander Rothholtz testified that decedent she said he her son; to him about wanted talked necessary it join him but would be in the United States attorney papers giving power of her to send him the for designated heir, sole will in he would be as and her which possible arrange him to for her it not be for otherwise would Germany. The witness saw a attor- departure from Willy lawyer ney up” by Pohlmann and a and a will ‘‘drawn copied signed were Pohlmann which Mrs. originals. Mrs. Pohlmann talked to sent back to “She was undecided witness about the will. witness said making him up wished, her will as her if she draw son only way it be her out of Ger- Seeing heir. that would sole many signed after much Decedent told she consideration.” copy of will her to witness son sent her forms handwriting Upon back to him. arrival in her own send Willy’s will, showed letter with the form of the stated that “she did want to leave it to the witness and very son, angry son everything and she was that her to her ’’ living. while she still The witness saw this of her asked will and knew its contents. Decedent was the form of the receiving telegrams, letters opinion, her son’s after only way by possible of the will was the that the execution Germany. get she out of The witness stated that could the same the forms of will which saw were as those referred mother, to his of which personal in his letters all
573 showed to the witness. The decedent letters his mother which the witness saw came from Cuba and the United States.
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findings
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The statements made decedent to the witnesses Loewenstamm and Rothholtz preceded above related sign ing of the will which was not until executed “after weeks of consideration” Such decedent. statements and the evi dence thereof are therefore not within the rule on which “ appellant relies that cannot, testator the execution [a] after will, impeach validity by any of his its statements of fact con therewith,” (italics nected added) and that a will cannot be “impaired validity in its and effect afterthoughts.” (See Calkins, Estate 112 296, Cal. 302-3 577]; P. Estate [44 Gleason, 756, 872].) 164 Cal. 761 P. Such evidence was [130 purpose only admissible not ascertaining decedent’s mind in support state of but charge of the of undue influ ence. The only witnesses testified not to declarations made to them but decedent to facts coming to their personal knowledge through reading of letters from and the draft of the will recognized inbe his handwrit ing. Declarations of a testator are admissible to show his intention, feeling, belief or other state, mental whether made presence in the party of an (Estate adverse Carson, or not 437, 184 Cal. 445 17 A.L.R. cited) cases [194 239] and such statements given are to be pur consideration for the pose throwing light on the mental state of decedent and feelings and attitude person toward the legatee named question and on the of undue influence. Hetter mann, Cal.App.2d 48 263, 788].) P.2d More [119 over, the record discloses depositions that the of the witnesses were objection read without having been appellant made complaints questions the evidence
to the which elicited concerning Willy’s attitude and conduct. by- made can objection appellant in the trial court made Since no erroneously that the assign appeal error on evidence such, made assignment of error has been In fact no received. Incompetent evidence admitted without in this court. finding (Powers Board support a v. objection sufficient to Works, 546, 552 P.2d and cases Public Cal. 156] cited) may with other evidence be considered the court *10 (Dorfer Delucchi, Cal.App.2d 63, 66 subject. the v. on cited.)
P.2d and cases 905] probate parts, The consisted of two one will offered for trans- English, in in When each is written the other German. they duplicates. language lated into the other are found to be They as, will. be, were offered and have been considered one witnesses, years a translator for 30 and proponent’s
One of interpreter years English German, an for 10 testified opinion language instrument in that in his the the German English a into He “it is translation from stated: German. English. seems the will was first written in Then it seems that by English who laid the translation the into German one colloquial expression.” more to literal translations than stress opinion When the that translation asked reason for the English German, “It is be- was from into the witness said: may English in not in version is what we consider cause the ordinary only good English following phraseology but also the attempts to legal language, of a in whereas the German will literally very rea- English that version. For two follow almost sons, languages no one, colloquialism because has it that two literally every case, partly in because can translated grammar syntax. This partly because of idioms and attempt clear, strongly rather indicates some- makes or that German, English will to translate the into one endeavored closely following English wording phraseology, the entirely emanating from it effect the German the ’’ correct. unquestionably prepared by lawyer The was a document by any require- in familiar with in event one the California legal phraseology ments law. It is written in of the California layman. previous a There is evidence of a will not familiar to Willy, leaving property while all her executed of decedent specifically mentioning in but not he was Lucie. in Cuba legal when obtained advice in is that inference purpose found the will did answer his be- California he estate, cause have received her share of the not- Lucie would prepared had withstanding will, and he one that would be valid the California statute. under prepared other will
There is evidence that presumed decedent in and it must therefore be they in and Rothholtz, the evidence Loewenstamm wherein Willy’s they they handwriting, stated seen a in had will re credibility in ferred to the will involved this contest. Since the court, a matter trial witnesses is court relied on the truth the evidence Loewenstamm and Roth findings question procured holtz the will influence, part though given undue on based evidence deposition, will not be reviewing disturbed court. It is established the evidence that decedent could speak English nor copy neither read but she was able to accurately English language. written in Pro document ponent documents, English offered the two the German and the texts, holographic (1) will of decedent. she was Since English unable to read the language; document written (2) English (3) version handwriting; the Ger man text English copy is a literal translation of the without phraseology language; (4) idioms of the German witnesses Loewenstamm and Rothholtz each saw decedent’s possession Willy’s a draft of a will knew *11 that to be handwriting, pre the inference he is that had document the English pared, German, wrote himself in it both translat ing literally, it and sent his mother she it to so that could copy each version verbatim.
In addition the fact that the document conforms to the requirements by mentioning of the California statute both decedent, preceding children of whereas a will did not men- tion Lucie reason of such omission would not have been in disinheriting her, successful there is other evidence prepared Germany. that it here and not Had it been Germany presumed drafted in it it is would have conformed law, to the necessary German but it is in the form to its validity country. in that portions The of the German Civil relating Code to wills was introduced and trans- evidence portion relating lated. That provides: disinheritance “A may deprive portion testator compulsory of his descendant (1) If attempt against the descendant makes an the life of testator, any the spouse, descendants; or his or of of his ill- corporal wilful guilty of has been
(2) If the descendant of ill-treat- spouse; in the case or his treatment of the testator however, only the descendant where spouse, ment of has (3) If spouse; the descendant from such also descended against any crime, any serious wilful offense guilty been maliciously (4) If the descendant spouse; or his the testator statutory duty furnish mainte- commits a breach of his a dishon- leads testator; (5) If descendant nance to the ’’ The wishes. contrary to the testator’s or immoral life orable ground that provides further Civil Code German the time “must exist at compulstory portion deprivation of a The must be stated therein. making disposition and upon the ground is such proving the existence of burden of deprivation.” person up who sets require- question does not conform The will here any state in that does not Code of the German Civil ments the disinheritance which authorize of the reasons or conditions that to indicate There is no evidence of a descendant. of Lucie. existed for the disinheritance the aforesaid reasons pre- will was not inescapable that presumption is fact that it conforms Germany, reason of the pared in not, it is will statute, previous did and the California prepared will now before the court presumed that the instigation appellant. at the California his mother had testimony not know Willy’s that he did completely contradicted will until he received it is made a out evidence hereinbefore by the and circumstantial direct by other wit made some of the statements lined. He denied contrary that evidence his behalf and there was nesses However, all the evidence above related. which we have weighed in the balance and placed been the case has need will proponent judge. trial The evidence only duty the substan to determine since our not be stated findings. its upon which court based tiality of the evidence question the is substantial Without evidence to believe caused his mother cablegrams letters and Germany she depart until be able to she would not poisoned heir; making her sole a will executed state Lucie false against his sister mother’s mind he was Lucie to believe innuendos; that he led ments and *12 Germany when bring out of endeavoring his mother do, although there were Jewish making so to no effort if he given their aid in organizations Cuba that have 577 ample findings of fact find it; had that all other requested support shows the exertion of in the record. The evidence pressure overpower the mind and volition sufficient in time of the in the situation which she was at the decedent execution of the will. Willy undisputed
It wrote letters to his mother disparagement in evident from the fact of Lucie. This is making statements as wrote to the latter such again your brother, “make friends because he talks badly you.” about may proved circumstantial influence Undue Sproston, 4 Cal.2d evidence. as direct
as well 154, Miller, Cal.App.2d ; Estate P.2d 717, 720 924] [52 Snowball, 301, 314 Estate 157 Cal. 498]; P.2d 167 [60 unjust the court said an In the Snowball case 598].) [107 undue influ presumption of itself raise the not of will does may a cir be considered as nature of the will ence but undue influence. upon the issue of cumstance Graves, Estate Cal. The statement prophetically may to have been be considered P. 935] indic well-established facts instant case. Three made to fit the volition subversion of decedent’s undue influence or-a ative of (1) clearly between in the record: The relations stand out opportunity to control him an his mother afforded testamentary was such act; (2) decedent’s condition pro will; (3) her freedom of permit of a subversion of of the instru procuring the ponent was active in execution facts in of these probative force ment. The effect of the obliga impose upon proponent “is to combination ques to make presenting evidence of volition and tion of one of fact” tion as to undue influence determination (Idem. p. 262.) trier of facts. As said Graves appellant clearly appears that took case, “it an active securing the will part in the execution of at time when there relation between himself existed a confidential and” the testa trix. Added to the circumstances the Graves case is dece daily engendered by mind peril dent’s and her state of fear Nazis and her son’s insistence that she make sole heir before he would come to aid. language in this concedes his brief that “a
Proponent relationship mother; confidential existed between and his first, relationship; second, as a result of their intimate blood attorney Willy’s activity because he was her fact.” *13 578 inducing mother to his execute
preparation of the will and in His related. by which we have amply it is the evidence shown through fact that is obvious from the profit from the will undue was in his mother when she activity and his influence on his induced her losing her life he danger of dire distress and of the sister, his one him when to her entire estate to leave received bounty, would have objects of decedent’s natural for his acts. had it not been half of the estate says has failed to disclose Appellant his research “activity” was ad single decision wherein the claim a of the against person far removed from scene vanced so by instant record execution of the will as disclosed executed ever before may well be that no will was case. It this record as are shown under such circumstances for the presented been opportunity has such an that never elderly Never before overpowering person’s volition. of an in fear of death history people been held has a mass of undue religious In order exert solely of their belief. to because beneficiary influ necessary of that that the influence it is not if the the testator circumstances presence ence be in the may means other than pressure are be exerted such that not, beneficiary of the “does persuasion. Mere absence oral influence of undue law, as a matter of overcome the inference by the may from other facts” established be drawn Hettermann, Cal.App.2d 263, evidence. cited.) P.2d 788], and cases as to render mind Pohlmann was such The state of of Mrs. it repeated easy prey to her statements her an son’s price her sole heir as a necessary that she would be make escape the Nazi making possible it her for his directly upon the testa- brought to bear rule. Pressure was though appellant mentary threats of the behavior and act signed when the will was written present was not mother. Willy and from decedent’s letters to both It is evident thought enough of Lucie’s although once that, Lucie she had time dowry 10,000 marks at the provide husband Naschels for him after the marriage, she had no affection their not Notwithstanding fact she did indi- this came to America. until Lucie, was affectionate any ill-feeling toward but cate about statements Willy poisoned her mind after had had no founda- he knew were false and which sister which acknowl- wrote to Lucie 1939, May, tion in fact. In receipt “your saying “I will edging dear letters” anything anyone any power I sign give not and that will not attorney.” April, 1940, In she wrote letter Lucie showing her quoted, not intention hereinbefore expected daughter her but intended disinherit that she estate, saying latter receive that she share disposition property had transferred the of her you forget financially; “will that he is what our promised only has This letter is evidence me.” affection for Lucie and of her decedent’s that after desire her property death latter should share in but of *14 Willy’s dealing promise to his mother of fair with his sister— promise a that he did intend fulfill. the time he not to At same scheming was to obtain the entire for estate himself. opinion judge
In his the trial referred to decedent’s let- ters that contained unfavorable comments about Lucie’s showing he had and husband, weighed that considered that evidence in connection with all other evidence in the ease. judge performed trial duty, upon Since the had con- his flicting had in evidence reached the conclusions the recited findings fact record, of which are based on entire is beyond reviewing give emphasis of a court to such paramount to as great these letters to make them to the mass that findings. evidence sustains trial court’s toSo do jurisdiction our transcend and would transform this court from its status a reviewing court into a trial court. The May, 1939, will executed in in which devised property all to but Willy, expressly Lucie, mentioning perfect English. was written it is Since uncontradicted that Mrs. Pohlmann English could neither nor read write the language it is she manifest that any did not write it without the knowledge person other that but document was prepared English by copied another and verbatim de- right cedent. The trial court had a to draw the inference prepared Willy’s from the evidence that the instrument was at instigation.
Contradictory by Willy testifying statements made while testimony and the justified evasive character some of his in disbelieving changed court his evidence. He many documentary his answers when confronted contrary previous testimony other evidence to his admit- ted that letters to both Lucie and his mother contained false- example Havana, hoods. One his letter to from dated Lucie May permit had to his 27, 1939, in which said he sent he air the witness stand registered." mother “via mail and On his permit he statement admitted he had sent the to his ad- previously to Lucie was We referred false. have no to obtain such mission that made whatsoever effort permit organizations sought help never Jewish requested. him if so that would have aided he had Cuba to having made untrue statements Other admissions of appear in the mother and to Lucie record. Willy from to decedent were For obvious reasons letters for infer- justification obtainable as evidence. Further Willy’s that the at behest and ence 1939 will was executed regarded as insistence is found in the which cannot be fact the same month mere coincidence that the will is dated in permit that he Lucie had sent wrote If his mother. which he admits he made statement Lucie state- false, can it that he made a similar not be inferred ment to his in order induce her execute the will? mother anything
The record occurred is devoid evidence that daughter for her cause decedent to lose the affection change indicated in her earlier letters. reason judge feeling attitude inferred the trial letters, told Lucie that decedent’s one of which she very badly you." “talks about im- Willy’s “pressure more conduct amounted to than portunities daily peril and entreaties." knew his mother’s He n —a peril through Lucie’s assistance. escaped he had *15 escape life While his and freedom assured were country, imprison- Nazi-ridden his mother faced death “im- not that was than His demands were ment worse death. portunities that he entreaties," they were threats her he remain left when allow mother to where he had safety that she make fled to unless she acceded to his demand activity inducing him her the execution of sole heir. His the inferences amply will is the evidence and shown reasonably trier may be and that the drawn therefrom profit facts did draw. His undue is manifest. ephemeral not danger surrounding decedent was Since constantly her, the undue but hand of death was over her existed at the influence that caused execute the will very time of its execution. insufficiency only assignment is the of the error It court. is mani- findings
evidence to sustain the of the trial foregoing fest from the of facts discussion statement applicable only law that the evidence substantial satisfactory. but is sufficient and
Judgment affirmed.
York, J., concurred. WHITE, Conceding falsity J. rep- I dissent. proponent resentations to his mother as set forth in majority opinion, impressed I am present that there the record they designed no substantial evidence that were to and did making deceive the testatrix into a will different in its terms from that which she would have made had she been misled. conclusively
The record and without contradiction shows estrangement that here was an between testatrix her daughter. That it existed some months before the execution question the will here in is attested in a letter dated October 31, 1940, from the testatrix son, proponent to her herein, introduced into evidence, and in which she “If writes: Lu leaves scoundrel, divorcing this I him, would her think of my will, way!!! but not this After I am dead will con- everything.” test In another letter from decedent, dated January 14, 1941, a estrangement definite between her and daughter is indicated following excerpt therefrom: “I, too, think longer about ILu; sorry say am that I resigned have become this, way. she wants it that I have not written more for months, congratulate nor did I on her birthday, my birthday on I get single did not line from her. ...”
In letter, another dated 31, 1940, prior October to the execution of the will now us, before and addressed to her brother-in-law, Rudolph Pohlmann, decedent wrote: “. . . I very am also happy my satisfied and son is now there and you. often Yes, comes to see Rudolph, dear you can my have only my son!! But full confidence son, my not to son-in-law. I have go through had much to my already son-in-law given my and I have son-in-law very acquired much what I through had By hard work. means great of a stratagem my he married dear Lucie and then I also give had to him 10,000 My daugh- marks outside of that. ter good used to be a daughter, person, decent who was much good too for this scoundrel I you every- 11 don’t wish to tell *16 thing my which by way son-in-law has causing done of worries to me My and his wife!!! . . . son-in-law is not concern to
582 my only my my daughter,
himself affair nor son about my attorney my who in his hands which son has also of my given I my did not me but which have son extort from own volition. ...” may weigh appellate evidence,
While tribunal an whether, it must determine review consider the same to sup face, may justly on held that it is sufficient to its be port is not a involved, the ultimate issue in which case it question Upon a fact, purely review a but one of law. reviewing determining court cast the burden of whether is there evidence, is substantial contradicted or uncontra findings by Mr. dicted, support made. As was said Schauer, speaking Bristol, Justice the court Estate of 23 221, Cal.2d 223 in the P.2d : “The critical word [143 689] readily ‘substantial’; definition is it is a door which can lead as practical enlightened justice.” abuse as to or forgotten Neither presumes must it be the law person wrong (Code Proc., crime innocent of Civ. 1), 1963, presumption subd. and that must be overcome § alleges improper who the facts conduct. Evidence of and circumstances, together, proof taken must amount to fraud, and not suspicion cogently to mere As so thereof. vigorous opinion stated Mr. Carter, dissenting Justice O’Bryan Superior Court, 490, v. 18 501 P.2d Cal.2d [116 49, 136 knowledge A.L.R. : “It is a matter of common 595] charges easy of fraud make and undue influence are prove, involving difficult to and a review of the cases charges such reported which are in the decisions of this and appellate courts of this state discloses that substantial produced by evidence must be to invali a contestant order date a will grounds.” on either of these court characterized the testatrix as a woman
The trial “appears have been a woman of some determination.” who Llewellyn, court in Estate 83 Cal As stated this of 2d “may 822, 419], P.2d a will .App.2d 534, 561 [189 ground of undue influence unless be held invalid on showing pressure of some there be an actual sort volition of the tes overpowered the mind and mastered the very And it at the moment of execution of the will.” tator pressure importunities easy thing, mere person in full overpower entreaties the mind of a normal the issue of undue influ possession of his or senses. On considered is the mental condition ence a factor 384].) P.2d Teel, Cal.2d decedent.
583
by discussing
purpose
useful
the
No
served
com
paratively
appellate
decisions of the
tribunals of this
few
in
setting
state
an order
a will
undue influ
which
aside
for
quote
upheld.
ence has been
it
here
what was
Suffice
said
Llewellyn, supra,
page
at
555: “The
this court Estate of
very
is
engaging
evidence
the case now
attention
much
our
justify
setting
weaker than that held insufficient to
the
aside
of the
appellate
wills in other
decided
the
tribunals
cases
of
support
necessary
this
For
is
state.
of this statement it
following
to do no
than
more
to cite the
authorities: Estate
Perkins,
45];
Clark,
It is also bear in mind to that as far May 17, 1939, years back prior as more than two to the execu- tion of in question, decedent, the will here without the knowl- edge anyone, discloses, of far as record so wrote out holographic will, executed the bequeathed first wherein she appellant. all of her light Viewed in estate of the dece- daughter dent’s attitude toward her because of the latter’s marriage, as reflected the former’s letters hereinbefore set forth, impelling why an reason as previous arises in her will appellant. decedent left all of her estate to Furthermore, holographic inasmuch as February decedent’s will 10, of 1941, probate, way herein offered for differs in no from her original holographic May will 17, 1939, executed excepting expressly to disinherit the respondent, the record herein is
585
that was decedent’s
and uninfluenced
uncontradieted
free
long
intention
before the execution of
herein
the will
offered
probate
appellant.
to leave her entire estate to
Thus
presently
complete
document
under attack constitutes a
con
expressed
years
firmation of the
some
decedent’s wishes
two
(Estate
previously
Stump,
543]),
202 Cal.
310
[260
of
existence of
pattern
and establishes
respect
a definite
with
testamentary
(Estate
intentions and desires
O’Cal
laghan,
I therefore, judgment reverse the and remand cause directions to the judgment court below to enter admitting probate the will executed decedent dated *19 February 10,1941, appellant and issue to letters of administra- tion will annexed. rehearing for petition January
A was denied 24, 1949. White, J., rehearing. voted hearing by
Appellant’s petition Supreme for a Court 3,1949. was denied March