Madge Tucker, sister of Homer Lingenfelter, proposed for probate the purported will of Vivian Lingenfelter, his deceased widow. The contest of Lenore DeArmond is based upon the asserted incompetency of the testatrix. It is also charged that the will was executed as the result of duress and undue influence exercised by the proponent and her husband. The appeal is from a judgment entered upon a verdict in favor of the contestant and from an order denying a motion for judgment notwithstanding the verdict.
Homer Lingenfelter was an attorney practicing in partnership with Arthur Powell. On the day Vivian executed the purported will, Homer was seriously ill. He died the following day. One week later, Vivian committed suicide.
Powell was called as a witness by both the proponent and the contestant. As Lenore's witness, he testified concerning the execution of the will. Vivian came to see him, he said, accompanied by Madge, who had been staying with her during Homer's illness. Powell was not in his office when the two women arrived. Upon his return shortly thereafter, he found Vivian and Madge waiting for him in his reception room. Powell asked about Homer and Vivian said that he looked better.
Vivian and Powell went into his private office and closed the door. Madge remained in the reception room. Vivian handed Powell a paper which purported to be her holographic will. He testified that she wanted to know "if it is a good will legally." That instrument, he said, made bequests to a number of friends and acquaintances. It also included a provision for the care of a pet cat. Powell read the document aloud. As he mentioned each of its provisions, Vivian made some comment, expressing in virtually every instance her reasons for the bequest.
According to Powell, by the document Vivian gave the residue of the estate to Madge and her husband. Powell testified that when he read that clause, Vivian said, "They are only my in laws but they have always helped Homer and myself when we have needed them most and they have done more for me than my own family ever has."
Powell testified that he called to her attention the omission of any provision for Homer. Her reply, he said, was that, because Homer was so very ill, "she didn't expect him to make it and in any event she didn't have much of anything of her own." The situation, as Powell explained it, was that
In other conversations related by Powell, he said that they discussed her property and Homer's separate property. He explained to her that she could will one half of the community property of herself and Homer. "She understood if anything happened to one first the other would get" the marital home which was held in joint tenancy. She told Powell that she had no bank account of her own, only a joint account with Homer for household purposes. They also discussed Homer's life insurance. Powell admitted that he did not mention the value of the accounts receivable on the books of the law partnership.
In answer to a question whether he believed Vivian was capable of writing an introductory clause to a will such as that in the holographic instrument, Powell stated: "I believe she could on either of one or two conditions; one if Homer had helped her, or two, if she was going by another will, but it was pretty letter perfect."
Vivian asked Powell to have the document she had written prepared as an attested will, naming Madge as executrix. Certain other minor changes were to be made, such as a more specific provision for care of the cat. Powell testified that he dictated a formal will, using the handwritten document and some notes which he had taken during the conversation as a memorandum. When testifying, Powell could not remember whether the purported holographic will had been dated. He also could not recall what he had done with that document or with his notes, although he had searched for them in his office after Lenore's attorney had asked him to preserve "all Lingenfelter wills."
While the formal will was being prepared, Vivian and Madge left the office and walked about town. Upon their return, Madge remained in the reception room while Vivian went into Powell's private office and executed the will. At that time, Powell told the jury, "very definitely" Vivian was of sound mind. The other attesting witness to the will testified to the same effect.
A number of witnesses described Vivian as being a highly emotional and unstable person. According to the evidence, she would become upset on the slightest provocation. When upset, she would "disintegrate emotionally." She would
There is also testimony that Vivian was a person of very weak will, easily led and very susceptible to suggestions. She was almost completely dependent upon Homer and unable to manage for herself her own shopping and ordinary routine of life. She could not cope with any unusual situation such as illness, which demanded extra energy or more responsibility, and had to have help to meet it.
Among other subjects which seemed to upset Vivian were relatives, politics, Franco, Stalin, and the stability of the economic system of the world and of the United States. When emotionally disturbed, she would become extremely excited and abusive of anyone who did not share her views. She was jealous of Homer, and during one tantrum of several days' duration she procured a gun. Her suspicions of Homer's infidelity were unwarranted.
Dr. Bone, who had treated Vivian as recently as one week prior to her execution of the will, testified that she was unwell from the time he first knew her. He said she was an advanced psychoneurotic and a borderline case between sanity and insanity in a medical sense. In his opinion, she could be of unsound mind under the stress of excitement, anger or fear. Dr. Kimmel, long Vivian's physician, testified that she was of sound mind, but psychoneurotic to the extent of being barely able to manage her household.
Mrs. Valetta Morton, who saw Vivian between the two visits to Powell's office, testified that her conversation at that time did not make sense. As stated by this witness: "Well, she was talking about Mr. Lingenfelter being in the hospital one minute. Then she asked me to feel her back and maybe her neck, and to explain she said she was like being in a board, just as stiff as a board, and she said `I have this severe pain in my head at all times.' Then she would take her glasses, take them off and put them on and raise them up and pull them down, and her eyes looked very glassy." In Mrs. Morton's opinion, Vivian was of unsound mind at that time.
Mrs. Norby testified that when she saw Vivian a day or two after Homer's death Vivian was very upset. Vivian was perspiring, her hands were shaking, she was gray in the
Another of Vivian's friends, Marie Countryman, told of attempts to talk with Vivian about the time of Homer's illness. She stated that while Homer was ill, she tried to call Vivian on the telephone. The call was answered by an unidentified woman, who said "that Vivian was reading or was not able to talk." After Homer died, the witness called at the Lingenfelter home but no one answered the door. She again telephoned and the person who answered asked her "to wait a while ... To wait, not to come out." A day or two after Homer died, Mrs. Norby visited Vivian at her home. Also, the day after Homer died, Lenore talked to Vivian on the telephone.
According to several witnesses, Vivian often had stated that she considered Madge domineering and greedy. Vivian claimed that Madge had gotten the best of a deal with Homer in connection with their mother's estate. Two weeks before Homer's death, Vivian had said that she did not want Madge to come to her home because she was too domineering. There is testimony quoting Vivian as saying that the Tuckers consistently were conniving to get the Lingenfelter money. The record shows that Vivian expressed her dislike of Madge with screaming and yelling.
Over Madge's objection, evidence was admitted concerning Homer's statements in regard to her and Lenore. This testimony was to the effect that Homer considered the Tuckers to be "money minded," domineering and completely mercenary. As the witnesses related the conversations, he described relations between himself and Madge as a case of "dog eat dog," and said that Madge had "hogged their father's estate." Homer was very bitter because of Madge's treatment of their mother, whom he said she had killed. He especially hated Madge's husband, called him names, and said that he and Madge never would get a penny of his money.
For many years and at the time of his death, the contestant was Homer's secretary. Testimony on her behalf is to the effect that he was most appreciative of her services. The jury was told of conversations in which Homer had said that, when he was starting to practice law, she had worked
Lenore testified that in 1937 Vivian executed a will naming Homer as principal beneficiary. Under this will, the contingent beneficiaries were a college, Marie Countryman, and Lenore. The witness also stated that at the same time, Homer executed a will naming Vivian as principal beneficiary and Lenore as the sole contingent beneficiary. Another will of Vivian's made in 1946, was received in evidence. It named as contingent beneficiaries Lenore, Pauline Garewal and the college which was a beneficiary under the 1937 will.
According to the evidence, Vivian often had spoken to intimate acquaintances concerning the testamentary provisions she and Homer had made in their various wills. As stated by one witness, about two weeks before Homer died, Vivian said that her and Homer's wills were written just the way they wanted them. Over objections, his will, which named Lenore as contingent beneficiary and executrix, was admitted into evidence.
It appears that Madge had visited the Lingenfelters occasionally, and corresponded with Homer, but there is no evidence of constant association. On several occasions during Homer's illnesses, Madge came to the Lingenfelters' home at their request and helped in caring for Homer and running the household. By telegram, during Homer's last illness, Vivian asked Madge to come for that purpose. Madge arrived 10 days before Homer's death and stayed with Vivian until shortly before the suicide.
Upon this and other evidence, the jury returned a verdict in favor of Lenore upon each of the two grounds of contest. Thereafter a motion for judgment notwithstanding the verdict was denied. The appeal is from the judgment entered on the verdict and also from the order denying the motion.
The proponent of the will asserts that the evidence is insufficient to sustain the jury's verdict either that Vivian was of unsound mind at the time she executed it or that it was procured by undue influence. Also, it is claimed that prejudicial error resulted from the admission into evidence
Lenore takes the position that the evidence fully supports the jury's verdict upon each ground of contest. She declares that the court correctly ruled upon the admission of evidence and the instructions.
More specifically, Lenore argues, from the evidence the jury had a right to believe that Vivian did not comprehend the nature of her testamentary act. The record fully supports the implied finding, it is said, that at the time Vivian executed the will she was not aware of the character and extent of her property nor did she have in mind the persons who were the natural objects of her bounty.
The only testimony bearing upon Vivian's state of mind at the time of the execution of the will was that of Powell, the attorney who drew the will, and the other attesting witness. Both declared that Vivian was of sound mind at the time of execution of the will. None of the evidence offered to support a contrary determination indicates a mental condition
Vivian's other prejudices also fail to establish any delusion. None of them in any way bears upon her testamentary disposition.
Powell testified: "Personally, I forgot to mention anything about the accounts receivable and didn't consider them or anything like that, and I had no reason to go ahead and estimate them because they weren't due." Apparently Powell was exceedingly generous in his inclusion in Homer's estate of accounts receivable which were not earned until a considerable period of time following Homer's death. That Vivian failed to estimate with detailed accuracy the value of accounts receivable which were largely unearned at the time does not show that she lacked understanding of her interest in the partnership to the extent of the community property involved. The very discussion of the standing of the partners' drawing accounts indicates that she considered the partnership interest in making her will.
Lenore also points to the omission from the will of provision for Homer and for Vivian's brothers as proof that Vivian did not have in mind the persons who were the natural objects of her bounty.
When Vivian discussed the provisions of her proposed will with Powell, she told him that she made no provision for Homer because she did not expect him to live long. Powell mentioned her brothers. Vivian answered, "You know how I feel about Waldo after he got my share of my mother's estate." As to Earl, she said that he was taken care of. As Powell knew, Earl was an incompetent in a Veterans' Administration hospital.
In Estate of Graves, 202 Cal. 258, 262 [259 P. 935], it was said that the following facts, among others, are recognized as indicative of undue influence: "The relations between appellant and the decedent afforded to appellant an opportunity to control the testamentary act; the decedent's condition was such as to permit of a subversion of her freedom of will; the appellant was active in procuring the instrument to be executed. In addition, appellant unduly profited as beneficiary under the will. While none of these circumstances, standing alone, has the effect of creating a presumption against the validity of the instrument, their probative force, in combination, is to impose upon the proponent the obligation of presenting evidence of volition, and to make the question as to undue influence one of fact for the jury's determination."
"The unbroken rule in this state is that the courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of `a pressure which overpowered the mind and bore
Gibson, C.J., Shenk, J., Traynor, J., and Spence, J., concurred.
I dissent. In my view the evidence is not as a matter of law insufficient to sustain the verdict. The jury were not, as it seems to me the majority opinion indicates, bound to accept as true the evidence favoring the proponent. Disregarding the evidence favoring the proponent, insofar as there is impeachment or conflict, and construing all of the evidence and drawing all permissible inferences in favor of the contestant, I think the jury were justified in believing that the will as offered was not the free, voluntary and rational act of a competent testatrix. The majority opinion, I think, impliedly accepts as true all evidence favoring the proponent and unduly limits the inferences which may (and should properly) be drawn in favor of supporting the verdict.
For instance, the testimony that Vivian was a highly emotional and unstable person who on the slightest provocation would become upset, "disintegrate emotionally," scream and yell, and be beyond the reach of reason; that she was of very weak will, easily led and very susceptible to suggestions; that she was an advanced psychoneurotic and borderline case between sanity and insanity in a medical sense, and could be of unsound mind under the stress of excitement, anger or fear; that on the same day as, and at a time between, the two visits to Powell's office her conversation did not make sense, her eyes looked glassy, and in the witness' opinion she was of unsound mind; that in another witness' opinion Vivian was of unsound mind and was in that condition a day or two after Homer's death; that Vivian often had stated and indicated her dislike for the Tuckers, and had said the Tuckers were conniving to get the Lingenfelter money; that she had been dependent upon her husband, Homer, not only in matters
Because under the circumstances of this case no useful purpose would be served by discussing in this dissent issues of law not relied upon in the majority opinion I do not consider them.
Upon the issues discussed in the majority opinion I would resolve the conflict in favor of sustaining the verdict and affirm the judgment.
I agree with Mr. Justice Schauer that the evidence produced at the trial of this case is sufficient to sustain the findings of the jury that decedent was of unsound mind at the time the will in question was executed and that the execution of the will was the result of the undue influence of appellants.
It should be remembered that in this case we have not only the verdict of the jury holding the will invalid on both the above mentioned grounds but we have the rulings of
A statute of this state expressly provides that: "Any issue of fact involving ... the due execution and attestation of the will, or any other question substantially affecting the validity of the will, must be tried by a jury unless a jury is waived...." (Italics added.) (Prob. Code, § 371.) The force and effect of this statute was recently emphasized by a unanimous decision of this court in the case of Swift v. Superior Court, S.F. No. 18503, decided March 7, 1952. But of what value is the right to have an issue of fact tried by a jury if a majority of this court is to usurp the function of the jury in weighing the evidence and passing upon the credibility of the witnesses as this court has done in this case? The answer is obvious. The effect of the majority decision in this case makes the above cited statute a dead letter, and emphasizes the oft-repeated statement by critics of our judicial system that the result in any case depends not upon the law as declared by the Legislature or prior decisions of the courts, but upon the philosophy or point of view of the majority who compose the court of last resort. In other words, we have a government of men and not of law.
I have heretofore stated that the majority decision in this case goes farther in disregarding the determination of the fact finding body than any other decision because it not only nullifies the determination of the jury that Vivian Lingenfelter was of unsound mind when she executed the will in
Without attempting to review all of the decisions of this court and the District Courts of Appeal which have refused to sustain the findings of juries that wills executed by testators were invalid because of their unsoundness of mind or were procured by undue influence, my review of these decisions discloses that in almost every case where this court has refused to accept the determination of the jury in cases such as this, either the trial court had granted a motion for judgment notwithstanding the verdict or the District Court of Appeal had reversed a judgment based upon a jury verdict vacating and setting aside the will. In Estate of Arnold, 16 Cal.2d 573 [107 P.2d 25], the trial court had granted a motion for judgment notwithstanding the verdict, the District Court of Appeal affirmed and this court likewise affirmed by a divided court. The same is true of Estate of Finkler, 3 Cal.2d 584 [46 P.2d 149]. In Estate of Llewellyn, 83 Cal.App.2d 534 [189 P.2d 822, 191 P.2d 419], Estate of Russell, 80 Cal.App.2d 711 [182 P.2d 318], Estate of Agnew, 65 Cal.App.2d 553 [151 P.2d 126] and Estate of Hopkins, 136 Cal.App. 590 [29 P.2d 249], this court denied petitions for a hearing after a unanimous decision by the District Court of Appeal reversing the judgment in each of said cases. In Estate of Wright, 7 Cal.2d 348 [60 P.2d 434], this court by a bare majority of four justices reversed a judgment holding a will invalid on the sole ground of testamentary incapacity where the trial court denied a motion for judgment notwithstanding the verdict which determined that the deceased was of unsound mind at the time the will was executed. All of the foregoing cases hold that the evidence upon which the verdict was based was insufficient to show either unsoundness of mind or undue influence, although, to my mind, the conclusion reached by this court in each of said cases was based upon reasoning in conflict with the general rule that in cases where a trial by jury is a matter of right, all questions as to the weight of evidence and credibility of witnesses are within the sole province of the jury. There can be no doubt that the trend of decision both by this court and the District Courts of Appeal in will contest cases has been in direct conflict with the last mentioned settled rule which is generally applied in cases
Estate of Teel, 25 Cal.2d 520 [154 P.2d 384], marks a clear departure from the rule followed in the cases hereinabove cited and similar cases. In the last cited case this court said, at page 525: "Proponent on the other hand produced an array of witnesses who testified as to the soundness of decedent's mind and contradicted other evidence offered by contestant. Attorneys with whom decedent consulted during 1940 regarding the disposition of her property including Mr. Ricks, the draftsman of the will, and other persons acquainted with her, testified that her mind was sound. Evidence is pointed to which it is asserted explains the instances of decedent's conduct above referred to. The value or credibility of those explanations was for the trier of fact. Reference is made to evidence that she handled her first husband's business affairs for many years, he being blind, and that she was a careful and cautious business woman. To review those conflicts is not the function of this court. The trier of fact is the sole judge of the credibility and weight of the evidence in a will contest the same as in any other case. (Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689]; Estate of Miller, 16 Cal.App.2d 154 [60 P.2d 498]; Estate of Ramey, 62 Cal.App. 413 [217 P. 135]; Estate of Gill, 14 Cal.App.2d 526 [58 P.2d 734]; Estate of Doolittle, 153 Cal. 29 [94 P. 240]; Estate of Snowball, 157 Cal. 301 [107 P. 598]; Estate of Cashion, 27 Cal.App.2d 689 [81 P.2d 628]; Estate of Allan, 15 Cal.App.2d 272 [59 P.2d 425]; Estate of Caspar, 172 Cal. 147 [155 P. 631]; Estate of Arnold, 147 Cal. 583 [82 P. 252]; Estate of Webster, 43 Cal.App.2d 6 [110 P.2d 81, 111 P.2d 355]; Estate of Ross, 199 Cal. 641 [250 P. 676]; Estate of Johnson, 200 Cal. 299 [252 P. 1049]; Estate of Barr, 69 Cal.App. 16 [230 P. 181]; Estate of Russell, 189 Cal. 759 [210 P. 249].)
"`The rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case.... The rule as to our province is: "In reviewing the evidence ... all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary ... principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." (Italics added.) ... The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury's verdict. The critical word in the definition is "substantial"; it is a door which can lead as readily to abuse as to practical or enlightened justice.'
"A somewhat different theory was expressed in Estate of Casarotti, 184 Cal. 73, 78 [192 P. 1085], where this court said: `The testimony of proponent's witnesses must be taken into account in weighing the sufficiency of contestant's case. Evidence which standing by itself might be sufficient to sustain a verdict may in the light of all the facts be wholly inadequate, and that without invading the province of the jury as the judges of the weight and sufficiency of the evidence.' This statement was quoted in Estate of McDonough, 200 Cal. 57 [251 P. 916]. The last quoted excerpt cannot be considered as an accurate statement of the law inasmuch as it is contrary to the foregoing declaration in Estate of Bristol, supra, which has been announced so frequently that it must be considered as controlling. Of course, all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed." I submit that the majority opinion in the case at bar is in direct conflict with the foregoing declaration by this court.
I would, therefore, affirm the judgment denying probate of the will here involved.
Respondent's petition for a rehearing was denied April 3, 1952. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.