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District Court of Appeal, Third District, California.


Civ. 6844.

Decided: June 30, 1943

Hill & Hill, of Eureka, for appellant. John F. Quinn and Irwin T. Quinn, both of Eureka, for respondent.

This is an appeal from judgment refusing admission to probate of the proposed will of Irene L. Teel.

The testatrix, who was a widow about sixty years of age, and proponent, a widower aged sixty–nine, intermarried on June 29, 1940. On November 14, 1940, at the office of H. L. Ricks, decedent's attorney, they executed formal wills under the reciprocal provisions of which each was the sole beneficiary of the other. At the same time they executed deeds whereby they created a joint tenancy between themselves in certain of their properties. On December 2, 1940, Irene Teel committed suicide.

Proponent's petition for admission to probate of his wife's will was opposed by contestant, Rilma K. Gaskill, her only child by a former marriage, on the grounds of decedent's lack of testamentary capacity and undue influence exerted by proponent. At the trial proponent made a prima facie case by calling the witnesses to the will, Attorney Ricks and his secretary, Mrs. Burgess. Evidence was then adduced by contestant, at the conclusion of which proponent made a motion for a nonsuit, which was denied. Proponent then offered further evidence and at the conclusion of the trial moved the court for a directed verdict. This motion was also denied and the case was submitted to a jury upon special interrogatories. The jury found in favor of contestant on both grounds. Proponent then made a motion for judgment notwithstanding the verdict, but this motion also was denied and judgment was entered in accordance with the verdict. This appeal is presented on the sole ground of the insufficiency of the evidence.

Proponent's motions should have been granted. The evidence produced by contestant is insufficient to show either undue influence or incompetency to make a will.

As to what constitutes undue influence sufficient to support a finding, the court said in Re Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25, 27:

“In an action to set aside a will of a deceased person on the ground of undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testator's free agency and substitute for his own another person's will. [In re] Estate of Motz, 136 Cal. 558, 563, 69 P. 294. Evidence must be produced that pressure was brought to bear directly upon the testamentary act. In re McDevitt's Estate, 95 Cal. 17, 33, 30 P. 101. Mere general influence, however strong and controlling, not to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will, and must amount to coercion destroying free agency on the part of the testator. [In re] Estate of Keegan, 139 Cal. 123, 127, 72 P. 828. It is further held that mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient. [In re] Estate of Easton, 140 Cal.App. 367, 371, 35 P.2d 614.

“ ‘The unbroken rule in this state is that 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 down the volition of the testator at the very time the will was made.” ’ [In re] Estate of Gleason, 164 Cal. 756, 765, 130 P. 872.''

Also see In re Estate of Hopkins, 136 Cal.App. 590, 602, 603, 29 P.2d 249; In re Calkins' Estate, 112 Cal. 296, 44 P. 577; In re Estate of Carithers, 156 Cal. 422, 105 P. 127; In re Estate of Clark, 170 Cal. 418, 149 P. 828; In re Estate of Anderson, 185 Cal. 700, 198 P. 407.

There was no evidence produced by contestant of any such influence upon the testator. Attorney Ricks, who prepared the wills, testified that Mrs. Teel's will was prepared at her request and in accordance with her wishes; that she first came to his office on November 7th with Mr. Teel and stated that she wanted to make her will in favor of her husband, leaving nothing to her daughter; that at that time he tried to discourage her from omitting the daughter and told her to think it over; that he, however, took information from both parties and prepared wills in accordance therewith, and that subsequently the two returned and the wills were executed by them; that he did not talk to Mrs. Teel alone and that both parties were present when both wills were signed. He testified, however, that there was no apparent domination by Mr. Teel, and that he saw no evidence of influence; that he kept Mrs. Teel's will after its execution and that she could have had it at any time, but never called for it. Mrs. Burgess testified also that Mrs. Teel was not acting under duress, menace, fraud or undue influence.

The due execution of the will having been proved by the testimony of the subscribing witnesses thereto, the burden of proof was upon the contestant to establish undue influence. 26 Cal.Jur. 759; In re Estate of Black, 132 Cal. 392, 64 P. 695. There was no evidence produced by contestant in her case in chief bearing upon the testamentary act, or anything indicating coercion or lack of free agency on the part of decedent when she executed the will. Furthermore, one of contestant's own witnesses, Mrs. Hutchins, testified that decedent was a strong–willed woman.

Respondent's argument in support of the finding of undue influence is that Teel and decedent entered into a prenuptial agreement to make reciprocal wills, each naming the other as sole beneficiary, and that this shows that appellant married decedent for her money; that appellant “took decedent” to two other attorneys before their visit to Mr. Ricks; that he telephoned Mr. Ricks' office several times after the first visit to see if the papers were prepared; that he had in his possession necessary documents and made arrangements to furnish descriptions; that he discussed with Mr. Ricks and decedent the terms of the will and deeds; that he was present when the will was executed; that he took possession of the deeds after their execution; that there was a confidential relationship between Teel and decedent, and that Teel unduly profited under the will.

Even assuming the truth of the foregoing, it does no more than suggest motive and opportunity on the part of proponent, and completely fails to show pressure bearing directly upon the testamentary act or that testator's free agency was destroyed and proponent's will substituted for her own. Also, the evidence does not show that proponent “took” his wife to the other attorneys, but merely that the parties went together. Mr. Mitchell, one of these attorneys, who had previously transacted business for decedent, testified that in 1940 Mrs. Teel consulted him at least twice in reference to the disposition of her property; that Mr. Teel was probably present at one interview but that he did not participate in the conversation, and that on the other visit he talked to Mrs. Teel alone; that decedent told him that she had received a letter from her child demanding a share of the estate of the child's father, and that she asked if she was free to make such disposition of her property by will as she wished; and that he advised her that she was. Mr. Mitchell was apparently not asked to draw a will but merely to give advice as to what decedent could do. As to the visit to the office of Attorney Mace, there was no testimony that Teel took his wife to that office. Mr. Mace testified that she came there on November 1st with her husband and asked about making a will; that when he learned the nature of her business he took her into his private office, and that Teel did not participate in the conversation; that Mrs. Teel said she wanted to leave all to her husband, and that she was very emphatic that her daughter was to get nothing; that she said that she would think the matter over but did not return. These visits were prior to the visits to Attorney Ricks.

Respondent's argument that proponent unduly profited by decedent's will seems to be based upon a contention that decedent had more property than her husband and that, therefore, proponent, on her death, received more than decedent would have received had her husband predeceased her; but this does not make a case of unduly profiting under a will. Considered as a trade, it might have been a poor one, but upon Teel's death his wife would have received what little he may have owned, and after her death she had no use for either his or her own.

A will cannot be set aside on the mere ground that it is unjust or unnatural. In re Estate of Martin, 170 Cal. 657, 663, 151 P. 138. An unnatural, unfair or unjust will creates of itself no presumption of incompetency or undue influence (In re Estate of Smith, 200 Cal. 152, 160, 252 P. 325; In re Estate of Putnam, 1 Cal.2d 162, 34 P.2d 148); nor is a will necessarily unnatural that favors a spouse over an adult daughter, especially where such child is self–supporting and is married with a husband living, and is not dependent upon her mother. In re Estate of Stone, 172 Cal. 215, 222, 155 P. 992. Opportunity even coupled with a motive alone will not sustain a finding of undue influence in the absence of evidence showing pressure operating directly upon the testamentary act (In re Estate of Kilborn, 162 Cal. 4, 11, 120 P. 762); and it cannot be presumed because a husband has opportunity and inducement to exert undue influence over his wife, that he has done so. In re Estate of Donovan, 140 Cal. 390, 73 P. 1081.

Without unduly prolonging a discussion of this phase of the case we are of the opinion that the very most that can be said of contestant's evidence of undue influence is that it showed opportunity and perhaps motive. Taking it in its aspect most favorable to contestant, and disregarding conflicting evidence, it does not show even general influence over the testator by proponent; and there was no evidence that his influence was brought to bear upon her testamentary act amounting to coercion destroying free agency on her part.

Coming now to the evidence adduced on behalf of contestant relating to the mental capacity of the testatrix at the time the will was executed, it is to be considered that “evidence as to mental condition before or after the execution of the will is important only in so far as it tends to show mental condition at the time of the execution of the will.” In re Estate of Perkins, 195 Cal. 699, 703, 235 P. 45, 46; In re Estate of Sexton, 199 Cal. 759, 765, 251 P. 778. Also that the validity of wills of admittedly insane persons has been upheld where said wills were executed during lucid intervals. In re Estate of Fisher, 202 Cal. 205, 212, 259 P. 755; In re Estate of De Graaf, 34 Cal.App.2d 120, 93 P.2d 199; In re Estate of Young, 38 Cal.App.2d 588, 101 P.2d 770; In re Estate of Worrall, 53 Cal.App.2d 243, 246, 127 P.2d 593; 26 Cal.Jur. 634.

But taking the testimony adduced by contestant in its aspect most favorable to her, it is as follows:

Mrs. Hattie Hutchins (formerly Mrs. Colby), who from 1938 to 1939 lived on a portion of the property belonging to and next door to decedent, testified that decedent secured the execution of deeds that vested the title to the property occupied by the Colbys in Mr. and Mrs. Colby and herself as joint tenants, and that she put $2,500 in a joint bank account in her name and that of Mrs. Colby, so that the Colbys might build a house upon the property; that after Mr. Colby died the relations between her and decedent were not very friendly; that the witness found four flat tires on her car, broken red lights, damaged padlocks with solder poured in them, and that decedent girdled walnut trees on the lot so they would die; that in July, 1939, witness quitclaimed the property back to decedent and received $500. That during the time she lived next to decedent at times she firmly believed that she was mentally unbalanced; that she based this opinion on her actions, her looks and the things she did; that at times she had a peculiar look; that at one time decedent told her she had planted a hedge so a neighbor could not see her, and later trimmed it off so she could see; that she would tell one neighbor he could have feed for his cows, and in a day or two let another neighbor have it; that decedent tried to run one's life and wanted you to do absolutely what she wanted; that probably eight times she mentioned suicide, giving no reason except that once she said she felt “ornery”; that in 1938 or 1939 decedent said she thought she would see a doctor and have the wheels taken out of her head; that she mentioned leaving her daughter a ranch around Fruitland; that she didn't seem to want to leave her daughter and granddaughter any property; that she did not show peculiarities at all times; that she was “a very peculiar woman”; that they were not good friends at the time the witness left.

George Baham, brother of Mrs. Colby, testified to receiving a postal card from decedent in December, 1939, requesting him to have a deed from Mrs. Colby recorded when it had already been recorded; also a letter dated January 2nd in which decedent said she wanted Mrs. Colby to give her a quitclaim deed, though such a deed had already been given; that the letter meant “Just confusion; I don't know nothing else”; also a letter by testator dated February 19th regarding the same matter. (From this correspondence it appeared that decedent was worried because she had executed a deed of the same property to one Stevenson without getting a deed from Mrs. Colby, though the Colby deed had been executed.) This witness saw Mrs. Teel the day before she died, and testified also to events after her death concerning Teel's actions and two notes left by decedent. He had known decedent three and one–half years. When asked regarding her mental condition he answered: “I would say she was most peculiar”; “she would do something and then wish she hadn't done it and things of that kind, confusion.”

Mrs. Gertrude Lewis, clerk in a dry goods store, testified that Mrs. Teel, three or four days before her suicide, bought a nightgown, saying she wanted a “real nice one” because “I won't use it but the once.”

Mrs. Lola Lutman testified that after Mrs. Teel's death she found a letter from decedent in the mail box which they used jointly, which note read: “John is swell, don't think badly of him, he is a dear. Say nothing of this to John and use it just for yourself and Bud”; that the envelope contained $20, also a birthday card (witness was to have a birthday December 21st); that there was another envelope in the mail box addressed to Mrs. Carpenter containing about $65, which she saw Mr. Teel give to Carpenter that evening; that she found a note from decedent for Mr. Teel in a drawer in the kitchen where they kept writing material; that she did not read it but heard Teel read it; that in the letter testator spoke about money matters, said she was sorry they could not agree on money matters, but that nothing she could say would change his mind about money matters as he would say and always think he had to work; that there was something about how much she loved him and was sorry they couldn't be happy together. She also testified that Mrs. Teel had told her she wanted Teel to quit work, and that they could travel; that she had known Mrs. Teel for thirty years, lived near her for eighteen years, and the last eight years was with her a great deal.

Estelle Gaskill, contestant's daughter, fifteen years of age, said that Mrs. Teel, one day of a rodeo at Fortuna, offered her money to go to the rodeo, saying that she could not go as John was not able to go. Witness identified a card later received from Mrs. Teel saying they had her ticket and a new handkerchief for her but that she did not come to see them again before the rodeo. She also testified that she received a card from decedent on her birthday, November 27, 1940.

Mrs. Gaskill, Estelle's grandmother, testified that the day of the rodeo she had gone with Estelle to the Teel home and decedent had offered her [not Estelle] the money for Estelle's rodeo ticket.

Roy Brown, former business partner of Mr. Friend for six or seven years many years earlier, testified that in 1921 or 1922 he pulled Mrs. Friend out of the river; that he did not see her jump in; that he had previously heard her make remarks about committing suicide, but not since; that he saw her off and on after that. When asked as to her mental state, he said: “Why I consider she was badly unbalanced the first time I seen her and last act she did on earth”; that she once wanted him to go up and take a piece of their property, saying she would “fix up so I got it”; that she looked like she had “faded away in the last few years.” On cross–examination he stated that he lived on the Gaskill place; that he once tried to sell decedent some fruit in 1940, after her marriage. Asked if in his opinion Mrs. Teel was insane he said: “Well she was not exactly insane, no, but she was daggone badly off balance * * * weakminded * * * would only carry one friend at a time”; that she did Andy's (Friend's) business; that he considered her unbalanced because she once bought a cow for $150 (in 1920, 1921 or 1922) that “had wonderful papers tied to her, but she was old, real old and she was not worth 25¢”; that he sold the cow and when he and Friend quit Mrs. Friend “soaked” him $75; that she bought a heifer for $80 that was only good for the butcher as its teats were grown together; that he had had no transactions with her since that time and based his opinions on transactions during 1920–1922 and her suicide. He said: “I considered her very queer * * * as long as I could keep her friendship she was all right, but she would turn her back on you * * * as long as she was your friend she would give you anything she had”; that when friendship ceased “she would get your goat if she could.” (A motion to strike this testimony as too remote was denied.)

Mr. Teel, called under section 2055 of the Code of Civil Procedure, testified that he could not find the note left by his wife, but that it read: “Johnny, you will find the house clean and beds clean; go get you a pal. I am sorry, Rena.”

George Friend, a brother of Andrew Friend, 85 years old, said he saw decedent quite often before his brother's death but that he did not see her very often after Andrew died; that his brother was blind for twenty years. As to what in his opinion decedent's mental condition was, he said: “Well it was rather bad”; “I would call her very peculiar.” His reason was that “at times she would be very friendly and treat me nicely and other times she would be very cool for no cause as I could see. Sometimes she would jump in and get me a nice cup of coffee as soon as I went and other times she wouldn't give me anything to eat all day. I would call that peculiarities, wouldn't you?” He said that after his brother died he saw decedent about once a year––half a dozen times; that when he saw her about three years ago she was very pleasant; that he saw her just before she married Teel and she was pleasant then.

Rilma Gaskill, contestant, testified that as a girl she always had old–fashioned clothes, a little hat, etc., and boy's shoes; that the kids made fun of her; that she married in 1923 at the age of twenty–three, then taught school for two years, living at the Gaskill Ranch; that she left Humboldt County in 1925 and went to Oakland; that she had worked the last few years and that her husband was employed all the time; that her parents gave her some land on the Klamath River (238 acres); also lots in the Santa Clara tract at Eureka, which she finally sold for $400 or $500; that she sent money to her parents to make up a sum loaned to her Uncle George, at which time she and her husband put up $915; that they got back $1,200; that since living in Oakland she had gone to Humboldt County every vacation and paid visits to her parents when they were there; that her mother corresponded with her and her daughter and sent them Christmas and birthday cards, gifts, etc. Asked as to her mother's mental competency about the time the will was executed, she said: “I know that her mental condition was bad.” The reasons given by her for believing her mother's mind was not right were: “She married Mr. Teel and she committed suicide after she had been married to him for five months. Some time before she was married to him she had written to me and asked me if it was all right if she gave the property there at Hydesville, the entire property to my daughter and asked if it would be all right if she would give it to her instead of to me. * * * She committed suicide and took the dog with her. * * * I was on the property when she attempted, or made her suicide attempt that Mr. Brown spoke about the other day. I was there when he brought her back to the house from the river and heard her say at other times that she guessed she would commit suicide. She was always complaining about pains in her head; she couldn't think straight. She feared that she had some incurable disease. She told me the last time I saw her before she passed away that she was sure she had some kind of a growth and she suffered all the time. She had low blood pressure, she doctored for that; * * * she wrote me that she couldn't think straight; * * * that was in 1934.” (Here witness exhibited letters and postal cards from mother to daughter and granddaughter, sending love, etc. Some of these were sent on birthdays or other holiday occasions––one was sent to the granddaughter on her graduation from junior high school in 1940.) She stated she had discussed with her mother her marriage to Teel but had not objected; that at that time she mentioned property that had been her father's individual property––the Fruitland property; that she just asked her mother about Dad's property and if she intended to do anything about Dad's individual part of the property before she married; that her mother replied that there wasn't anything. She did not definitely recall that she ever assisted in the care of her father's and mother's business after she left home. She said that her mother had been peculiar back to some of her earliest recollections; that when she was a small child her mother would insist upon her giving food that was in a spoiled condition to her uncle; that she would buy clothing, hang it up in the closet and perhaps never wear it and perhaps later tear it up for rags; that about 1927 or 1928 she took a fancy to being an equestrian, and bought a saddle horse but didn't keep it very long and disposed of it; that she was always melancholy and mournful and couldn't understand why she couldn't be like other people; that she was not always melancholy; that she would be cheerful in the morning and in the afternoon would be moody and complain of pains; that she doctored all the time and was not able to do her work all the time. Other reasons for believing that her mother's mind was not right were that the last thing she did was to commit suicide with the dog; that she made a will disposing of her property to someone that was apparently more or less of a stranger to the family, while at the same time her letters and cards indicated loving and wanting to do things for her own family.

Rex Musser, a mortician at Fortuna, testified for contestant that when Andrew Friend died Mrs. Friend made arrangements for the funeral; that she was to bring Mr. Friend's clothing down, but instead she brought a dress.

Decedent's physician Dr. Kramer, called by contestant, testified that he had known decedent about seven years; that she had consulted him after her marriage; that she had low blood pressure and a cancer phobia (fear of cancer), but that he found no organic disease; that he last saw her in August, 1940; that he saw no evidence of insanity and, with the possible exception of that phobia, her mind seemed to be perfectly clear at all times; that in his talks with her he found nothing to indicate insanity. He did testify that the commission of suicide is not a normal act; also he was asked a hypothetical question as follows:

“What would your opinion of a person be who in 1922 threw herself into a river and attempted suicide––in an attempt to commit suicide and was pulled out and who thereafter at least six or seven times threatened to commit suicide, did commit suicide in December 2nd of 1940, that prior thereto, a month or two or two months, the time is a little indefinite, told her husband that she would or might commit suicide, a woman who at one time purchased a high priced animal for $175.00 and then disposed of it for a little or nothing, had to get rid of it, who at time three or four years, in 1937 or 1938 was in a business transaction, a transaction completely closed and the deeds had been drawn up and delivered and after all this was done she wrote a letter in which she stated that she wanted these quit–claim deeds to be made out and placed on record, when it already had been done; a woman that complained about her head, laid down a great deal, complained that she was not able to do her work; a woman that in drawing up her will left her property to a man she had been married four months to, cut out completely her only child, only daughter; who complained a great deal of headaches, she had low blood pressure, would you say a person that had such characteristics, whether or not * * * she was of sound or unsound mind?” and his answer was: “I would strongly suspect she was of unsound mind if all those facts were true.”

However, some of the things upon which contestant's witnesses based their beliefs are explained.

The letter wherein testatrix told her daughter she couldn't think straight was introduced in evidence. It was as follows:

“Dearest kids––Just rec'd Stanleys very nice letter––many thanks––also yours, Rilma––and last & least––the check. The mtge is $3,652.50. 1/4 is 913.12. You sent $750. That leaves $163.12. Plus corset money, 1.35 is $164.47. So take what is over on your check of $165. out of the tax money. Better keep it 1/4 on everything. Taxes were $13.44 on one piece & $82.15 on the other. Total $95.59.1/4 is $23.89. Just think, there is nearly $75. interest already. The mtge from Sept. 5th & taxes from Nov. 14th. Keep these dates. Now Rilma if I make any mistakes in the figures, tell me, please, for my old head hurts & does not think good nor quick & I can not see good and am very liable to get something wrong. I do not mean to, so if I do, you come right back, right then. Don't hesitate, hear?

“I had a little lamp for the radio––one from the 10¢ store––the green one is real small on the bottom & the shade large, so your dad would likely tip it over. I will have a wire run thru the ceiling––should have been done before––& put it in the living room. It is too tall to go on the sideboard under the cupboards.

“Did I tell you we have a big Belgian shepherd dog? His name is King. Not cross but a good watch dog. Tell Estelle he brings in wood, brings our slippers and does all sorts of tricks even to bringing his pan in when you tell him. He is an old dear & thinks the world of us––will not go outside the yard unless I do. He is such an old mutt for us that he frets whenever he can not be right with us, guess I'll have to stay at camp next summer, so he can be with us.

“No there has not been much snow in the hill & only a few light frost here.

“I'll go now so the stage will get this today. Lots of love to all of you. Write often, come again, Stanley.

“Ma F.”

Plainly it refers to the loan made by Mr. and Mrs. Friend and Mrs. Gaskill to the latter's uncle, to which she referred in her testimony. This letter refutes any inference of unsound mind and shows, on the contrary, that Mrs. Friend was attending to the business of the loan, and that she wanted to be entirely fair with her daughter and have the transaction fully understood by her.

The testimony of Musser, the mortician, about decedent's bringing a dress instead of her deceased husband's clothes was explained by Mrs. Lola Lutman, who, on that occasion, accompanied Mrs. Friend to the undertaker's. She testified that this incident occurred in connection with the funeral of Mr. Colby and not that of Mr. Friend; that Mrs. Colby asked Mrs. Friend to take clothes to the undertaker and gave them to her in a box; that Mrs. Friend had with her another box containing a dress she was taking to the cleaner, and by inadvertence gave the wrong box to Musser; that he immediately discovered the error and the boxes were exchanged.

Regarding the testimony of Mrs. Colby that she found her tires punctured, etc., it is to be noted that she did not testify that Mrs. Friend punctured her tires; she only intimated that she had done so.

Much of the foregoing testimony of contestant's witnesses was remote in time, and little of it bore directly upon the time this will was executed or a period immediately before or after said date. On the other hand witnesses who had had almost daily contact with decedent up to the time of her death (including Mrs. Lola Lutman) uniformly testified to her soundness of mind and business ability. While it is true that testatrix committed suicide, the court said in Re Estate of Chevallier, 159 Cal. 161, 113 P. 130, 134, where it was held that the evidence fell far short of showing unsoundness of mind of the testator, that “The fact that the testator is a suicide may be given in evidence as tending to establish insanity, but there must be much more than the mere fact of suicide to show that the insanity was so complete as to destroy testamentary capacity, or that it was of such a nature as to have exercised a direct influence and bearing upon the testamentary act.” Also see In re Estate of Dolbeer, 149 Cal. 227, 86 P. 695, 9 Ann.Cas. 795; In re Estate of Muller, 14 Cal.App.2d 129, 57 P.2d 994; In re Estate of Little, 46 Cal.App. 776, 189 P. 818. The testimony of contestant's witnesses also furnishes little or no ground for holding that testatrix was of unsound mind. The opinion of a lay witness as to mental capacity of a testatrix has no greater probative value than the facts given by him as the basis of his conclusions (In re Estate of Short, 7 Cal.App.2d 512, 47 P.2d 555; In re Estate of Sexton, 199 Cal. 759, 251 P. 778; In re Estate of Nolan, 25 Cal.App.2d 738, 78 P.2d 456), and the facts given by contestant's witnesses as the bases of their opinions are insufficient to show more than peculiarities of testatrix; and testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies or mental departures from the normal unless they bear directly upon and have influenced the testamentary act. In re Estate of Wright, 7 Cal.2d 348, 60 P.2d 434. As to the answer of Dr. Kramer to the hypothetical question asked him, the court said in Re Estate of Collins, 174 Cal. 663, 164 P. 1110, 1113, that such testimony, based on a question “skilfully framed to call for an answer favorable to the party in whose behalf it is asked”, is testimony the weakest and most unsatisfactory. Citing In re Estate of Dolbeer, 149 Cal. 227, 243, 86 P. 695, 9 Ann.Cas. 795.

It is well established that testamentary capacity is always presumed and that the burden is always upon a contestant to show affirmatively and by a preponderance of the evidence that the testator was of unsound mind at the time of the execution of the will. In re Estate of Perkins, 195 Cal. 699, 235 P. 45; In re Estate of Peterkin, 23 Cal.App.2d 597, 73 P.2d 897; In re Estate of Short, 7 Cal.App.2d 512, 47 P.2d 555; In re Estate of McDonnell, 109 Cal.App. 577, 293 P. 651; In re Estate of Garvey, 38 Cal.App.2d 449, 101 P.2d 551; In re Estate of Little, 46 Cal.App. 776, 189 P. 818. And a testator is of sound and disposing mind and memory if at the time of making his will he has sufficient mental capacity to be able to understand the nature of the act he is doing and to understand and recall the nature and situation of his property, and to remember and understand his relation to the persons who have claims on his bounty and whose interests are affected by the provisions of the instrument. In re Estate of Arnold, 16 Cal.2d 573, 107 P.2d 25, In re Estate of Finkler, 3 Cal.2d 584, 46 P.2d 149; In re Estate of Peterkin, 23 Cal.App.2d 597, 73 P.2d 897.

Incompetency or unsoundness of mind sufficient to avoid a testamentary act must be either insanity of such a broad character as to establish mental incompetency generally, or some specific and narrower form of insanity under which the testator is the victim of some hallucination or delusion, and as to the latter the evidence must establish that the will itself was the creature or product of such hallucination or delusion and that it influenced the creation and terms of the will. In re Estate of Perkins, 195 Cal. 699, 235 P. 45; In re Estate of Wright, 7 Cal.2d 348, 60 P.2d 434; In re Estate of Collins, 174 Cal. 663, 164 P. 1110; In re Estate of Peterkin, 23 Cal.App.2d 597, 73 P.2d 897; In re Estate of Chevallier, 159 Cal. 161, 113 P. 130.

Here the evidence shows that at the time she made her will decedent understood the nature of her act, the nature and situation of her property and her relation to her daughter, and that the will was executed after several days of deliberation. Neither insanity of such a broad character as to establish mental incompetency generally, nor any delusions or hallucinations which influenced the creation and terms of her will, was shown. As was said by the court in Field v. Shorb, 99 Cal. 661, 670, 34 P. 504, 507, “it is quite probable that the finding was a result of a notion frequently entertained by jurors (and sometimes by courts) that a man should dispose of his property in contemplation of death in such manner as to suit the tastes and ideas of propriety of the jurors. It was probably thought that deceased should not have given so much to one not of his blood, when he had collateral kin.”

Cases in which evidence more abundant than in the case before us was held to be insufficient to show incompetency are: In re Estate of Little, 46 Cal.App. 776, 189 P. 818 (where the testator had often threatened suicide and did commit suicide about thirty days after executing his will); In re Estate of Collins, 174 Cal. 663, 164 P. 1110 (where testatrix had paralysis, and evidenced idiosyncrasies, pecularities, and weakness); In re Estate of Hopkins, 136 Cal.App. 590, 29 P.2d 249 (where testator had a cancer phobia, was affected with melancholia, and may have committed suicide); In re Estate of Wright, 7 Cal.2d 348, 60 P.2d 434 (where testator drank to excess, picked up articles from garbage cans, pinned paper flowers on shrubs, and gave a friend a fish which he had soaked in kerosene); In re Estate of Peterkin, 23 Cal.App.2d 597, 73 P.2d 897 (where testator threatened suicide, had progressive senile dementia, was given to fits of rage, and exhibited peculiarities); In re Estate of Arnold, 16 Cal.2d 573, 107 P.2d 25 (where testator had chronic alcoholism, had suffered several attacks of delirium tremens, was irrational and suffered from several diseases); In re Redfield's Estate, 116 Cal. 637, 48 P. 794 (where testatrix had delusions and irrational fears, and there was insanity in the family); In re Estate of Sexton, 199 Cal. 759, 251 P. 778 (where testatrix suffered from arteriosclerosis, had several paralytic strokes––cerebral hemorrhages); In re Estate of Perkins, 195 Cal. 699, 235 P. 45 (where decedent had hallucinations, loss of memory, and suffered from chronic Bright's disease); In re Estate of Nolan, 25 Cal.App.2d 738, 78 P.2d 456 (where testator suffered lapses of memory, fainting spells, and had had a severe head injury); In re Estate of Chevallier, 159 Cal. 161, 113 P. 130 (where testatrix committed suicide); and In re Estate of Putman, 1 Cal.2d 162, 34 P.2d 148 (where testator was about 80 years old, used liquor habitually, and had arteriosclerosis).

The judgment is reversed and the trial court is directed to admit the will to probate.

I dissent. It is my opinion the record contains an abundance of evidence to sustain the verdict of the jury and the judgment of the court to the effect that the will of Irene L. Teel is void for lack of testamentary capacity and on account of the undue influence of John L. Teel. I am in accord with the principles of law announced in the majority opinion. But I believe they do not fit the facts of this case. It is not the province of a reviewing court to weigh the evidence or to pass upon the credibility of witnesses in a will contest. The findings of a jury are entitled to just as much credence in a will contest as in any other civil action. It is the uniform rule in this class of cases that when a reviewing court has ascertained that there is substantial evidence to support the essential findings of a jury, its province is exhausted and a judgment in accordance therewith must be affirmed, regardless of the presence of conflicting testimony. In re Estate of Barr, 69 Cal.App. 16, 230 P. 181; In re Estate of Hansen, 38 Cal.App.2d 99, 100 P.2d 776; 26 Cal.Jur. 1101, § 356.

In the present case a unanimous verdict of the jury determined that the will was the product of an unsound mind and of the undue influence of Mr. Teel. The trial judge denied the proponent's motions for a directed verdict, a judgment notwithstanding the verdict and a motion for new trial. A careful reading of the record convinces me that the testatrix was of unsound mind; that she lacked testamentary capacity; and that her will was the product of the undue influence of John L. Teel. To my mind the evidence in this case adequately meets the requirements of even a strained construction of the law with respect to the issues involved.

We are confronted with the fact that the testatrix actually took the lives of herself and her pet dog in a tragic suicide within eighteen days from the time when she executed her will. By the terms of that will she disinherited her only living child by a former husband. That tragedy was the fulfillment of a suicidal mania which she possessed for many years. Some seventeen years previously she attempted to commit suicide by jumping into a river. Several witnesses testified to numerous threats to take her own life. She appears to have had the symptoms of paranoia, which is a fixed and progressive type of insanity. She had delusions, habitual melancholy, violent headaches and uncontrollable animosities against those who were her best friends; she had weird fancies, eccentricities in dress and in her conduct toward other persons, and she possessed a fixed suicidal mania.

Mrs. Teel was despondent and she often complained of severe headaches. She said she was unable to think or act reasonably. She implied that her mind was deranged when she once said she intended to go to a physician and have the wheels taken out of her head. She had a fixed delusion that she was afflicted with a cancer of the stomach. Her own physician testified that she possessed a “cancer phobia”. After he examined her and took X–ray pictures and informed her that she had neither tumors nor a cancer and that she did not have any other stomach ailment, she did not appear to believe his statement. The delusion still remained. Her physician, Doctor Kramer, was the only medical expert who testified regarding her mental capacity. He had known her for about seven years. She consulted him four years before her death about her fancied stomach trouble. He was unable to disabuse her mind of that delusion of the presence of a cancer. He saw her in July prior to her death, and said she then appeared quite a bit older and emaciated. Although she was very slender she had lost considerable weight. He said she was generally melancholy. While he did say, “I saw no evidence of insanity”, in response to the question as to whether her mind seemed clear, he replied, “With the possible exception of that [cancer] phobia.” When he was asked if he considered suicide to be a normal act, he replied, “It certainly is an abnormal act.” Finally in response to a very fair hypothetical question including the strange conduct and characteristics of Mrs. Teel, and her final act of suicide, when asked if he would consider such a person to be of sound mind, he replied, “I would strongly suspect she was of unsound mind.”

Among a number of strange incidents which appear in evidence, a business transaction which Mrs. Teel had with a neighbor regarding the joint ownership of a home indicates that she had no real appreciation of the transaction or the ownership of the property. When her first husband, Andrew J. Friend, the father of Mrs. Teel's only living child, the contestant, died in 1936, and the proprietor of the mortuary where his body lay requested her to provide appropriate clothing for the burial she brought a box containing a dress.

It is not the province of the reviewing court to attempt to explain these numerous irrational and eccentric acts and statements of the testatrix on the theory that she must have been sane. That was the exclusive province of the jury. On appeal the tables are turned. If these acts and her conduct may reasonably be said to support the findings of the jury, then their conclusions should be upheld.

On the subject of undue influence it appears that the proponent, John E. Teel, married the testatrix June 29, 1940, five months after the death of his first wife. April 20, 1939, the testatrix executed a declaration of trust conveying to John E. Teel, as trustee, all of the property she possessed, including a $1,000 bond and real property valued at about $24,000, giving him absolute power to sell, lease, mortgage or hypothecate any and all of said property without her approval or consent. Prior to their marriage Mr. Teel and the testatrix agreed to execute mutual wills devising and bequeathing to each other all of their property. The value of his property was only about $1,000. After their marriage the spouses went together and consulted two different lawyers with the object of procuring the mutual wills and joint tenancy deeds to her real property. For some reason, these attorneys did not draw those instruments. November 7, 1940, they visited together the office of H. L. Ricks, an attorney at law in Eureka, for the same purpose of executing the mutual wills and the joint tenancy deeds. In several interviews with Ricks both of the spouses were present and both participated in the discussions. Mrs. Teel declared her intention to disinherit her daughter, but gave no satisfactory reason therefor. Ricks tried to persuade her that was unjust and wrong. They left but subsequently returned to his office and he drew three joint tenancy deeds to all of her real property, and the mutual wills. The wills were executed November 14, 1940, and the deeds on November 19th. By the terms of her will the testatrix devised and bequeathed all of her property to her husband, and in the event of his death to his son Roy Teel, with whom she was only slightly acquainted. John E. Teel was named as executor without bond, and in case of his death his son Roy was to act as executor without bond. Her daughter, Rilma K. Gaskill, the contestant, is not mentioned in the will. There is evidence that the bulk of the estate of testatrix consisted of community property acquired while she lived with her first husband, who was the father of the contestant. There is also evidence that Mrs. Gaskill was always very considerate of her mother, and that no sufficient reason for her disinheritance existed. The wills were left in the possession of the attorney, but John E. Teel returned several times and took possession of the deeds and other instruments and recorded them.

There is ample evidence of Mr. Teel's activity in procuring the execution of the will and the other documents. He unduly profited by the transaction. He was always present when they visited the lawyers to procure the execution of the documents. He took part in the conversations. A confidential relationship existed between the spouses.

Under the circumstances of this case the jury was warranted in assuming that the will was unnatural, since the testatrix disinherited her only living daughter by her first husband with whom she had been on good terms, without even mentioning her in the will. While it is true that one has a legal right to make an unnatural will, or even to disinherit those who would ordinarily be entitled to his bounty, where the question of testamentary capacity and undue influence are involved, such injustice and unnatural terms of the will may become persuasive evidence of the invalidity of the will. In re Estate of Johnson, 72 Cal.App. 663, 237 P. 816; 26 Cal.Jur. 633, § 7. In the text last cited it is said in that regard: “When accompanied by the fact that the provisions of the will are ‘unnatural’, evidence tending to show that the deceaseo was suffering from mental derangement or disorder will require a rejection of the propounded instrument.”

The testimony of the attorney who drew the will or of the witnesses to a will with respect to the mental capacity of the testatrix is entitled to weight, but it is not controlling on that issue. In re Estate of Hansen, 38 Cal.App.2d 99, 100 P.2d 776; In re Estate of Pessagno, 58 Cal.App.2d 390, 136 P.2d 644. In the last mentioned cases judgments denying probate to the wills on the grounds of undue influence and unsound mind were affirmed on appeal. Hearings by the Supreme Court were denied. The present case appears to me to be much more conclusive than the previously cited cases of the fact that the testatrix was afflicted with settled insanity, and that she did not possess testamentary capacity. The case of In re Estate of Bucher, 48 Cal.App.2d 465, 120 P.2d 44, involved the questions of unsound mind as a result of habitual intoxication, and undue influence. After a verdict had been rendered in favor of the contestant the trial court rendered judgment notwithstanding the verdict, and admitted the will to probate. On appeal that judgment was reversed. The Supreme Court denied a hearing. That case is enlightening on the issues which are involved in this case on the subject of the province of a reviewing court to weigh the evidence and reverse the findings of a jury. It also announces the well established rule that the contestant is entitled to the benefit of all evidence adduced and of “all inferences which may legitimately be derived by the jury from the facts as established.” 28 R.C.L. § 97.

While it is true that evidence of an unsound mind or of undue influence which will warrant the refusal to admit a will to probate on those grounds must be shown to have actually affected the execution of the instrument, it is not necessary to establish that result from direct evidence. They may be shown by circumstances which naturally lead to that conclusion. The contestant in this case is entitled to the full force of all the evidence adduced in support of the findings of the jury and the judgment of the court, including every natural inference which may be drawn therefrom.

I am persuaded there is ample evidence in this record to support the findings of the jury and the judgment of the court, and that the judgment should therefore be affirmed.

ADAMS, Presiding Justice.

PEEK, J., concurs.