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District Court of Appeal, Third District, California.


Civ. 6373

Decided: February 09, 1940

Geary & Geary and C.J. Tauzer, all of Santa Rosa, for appellant. Barrett & McConnell, of Santa Rosa, and A. Dal Thomson, of San Francisco, for respondents.

By this action appellant seeks to contest the will of Hobart L. Arnold, deceased, his uncle, upon two grounds—undue influence and unsoundness of mind. The trial court granted a motion for nonsuit as to the former, and upon the latter issue the jury found in favor of appellant. Judgment notwithstanding the verdict was entered upon the motion of respondents, and the appeal is from such judgment.

The will in question is in the handwriting of the testator, and reads as follows:

“May 6, 1936.

“I, Hobart L. Arnold, of Santa Rosa, Sonoma County, California, being of sound and disposing mind and memory, and not acting under undue influence of any person whomsoever, do make, publish and declare this to be my last will and testament. I am single. I have no children. I do give and bequeath my property to the persons named in this will.

“To Earl W. Peterson, of Modesto, One Thousand Dollars.

“To Walter Staley, of South Laguna, Orange County, One Thousand Dollars.

“To Florence Wells Lancini, One Thousand Dollars.

“To Dresse Wells, Five Hundred Dollars.

“To Lois Hardisty, of Santa Rosa, Five Hundred Dollars.

“To Mabel Baudau, of Windsor, One Thousand Dollars.

“To Mrs. M.A. Parrish, of 641 Sonoma Ave., Santa Rosa, One Thousand Dollars.

“To Frances Carrington, of Rincon, Valley, and Vera Logan of 925 Wright St., Santa Rosa, I leave the rest of my estate, to share alike of what stocks, bonds, real estate personal or whatever I may own at the time of my death. I appoint Frances Carrington and Vera Logan as executrixs of my estate without bonds.

“Signed this 6th day of May, 1936.

“Hobart L. Arnold.”

Taking up first the right of the court to render judgment notwithstanding the verdict, “The right of the trial court to set aside a verdict and enter a contrary judgment is absolutely the same as its right to grant a nonsuit”. Card v. Boms, 210 Cal. 200–202, 291 P. 190, 191. In Estate of Arnold, 147 Cal. 583–586, 82 P. 252, 253, the rule in respect to the conditions under which a nonsuit may be granted is thus stated: “In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases. Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of the contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true, and if contradictory evidence has been given it must be disregarded. If there is any substantial evidence tending to prove in favor of the contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on the merits.” (Italics ours.)

In determining the quantum of evidence necessary to make out a case upon the issue of unsoundness of mind, we have been guided by the general rule laid down in Estate of Sexton, 199 Cal. 759–764, 251 P. 778, 780, where it is said: “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, to understand and recollect the nature and situation of his property, and to remember and understand his relations to the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.”

The record shows that the testator had resided in the city of Santa Rosa for a number of years. In 1915 his wife inherited personal property and cash amounting to some $50,000. For many years prior to the date of the will he was addicted to using intoxicating liquor, to a degree which was excessive in the extreme. His family physician and numerous citizens testified that he was continuously drunk. His wife died in 1935, and he succeeded to all her estate, which then had an appraised value of $53,661. After her death he became despondent and morose, and continued to consume intoxicating liquor in an increasing amount, resulting in several treatments in the hospital for delirium tremens. In March, 1936 a woman, Vera Logan, became interested in him. She was then living with a man who was not her husband. She took testator to her house to live, when he was in a drunken stupor, in which condition he remained for several days, when she had him removed to a hospital for treatment of delirium tremens. She went around to various places with him, and drank with him on some occasions. She secured from testator a power of attorney to withdraw funds from his bank, and the records show thousands of dollars drawn by her from his account, for various purposes. One day she found him dead in her house. His will was discovered in a wallet in one of his pockets. She and another woman who was a stranger in blood to the testator were left the residue of the estate, valued at $20,000. Appellant, a nephew, was left the sum of $1,000. Several other bequests were made.

In a summary of the testimony we are about to give, only that which would tend to support the verdict is included. That of witness Pleth appears at some length, because we do not see how the question can be fairly presented without considerable elaboration. Dr. Valdemar Pleth was a regularly licensed physician practicing in the city of Santa Rosa, Sonoma county, and was the family physician of the testator and Mrs. Arnold for many years prior to their respective deaths. From 1929 up to about the year before the death of testator, Dr. Pleth frequently administered medical aid to him on account of being intoxicated. He testified substantially as follows:

“Prior to Mrs. Arnold's death I would say I treated Mr. Arnold for being drunk about two hundred times; that is, I examined him. Sometimes he got a prescription of bromides and sometimes atropin sulphate, and sometimes salt water for the purpose of dehydrating the brain. I gave him these because he had adema or swelling of the brain, to dehydrate those parts that were swollen, so that the pressure would be relieved on the nerves. When that happens the brain suffers adema and degeneration. The injection of salt and sugar drives the excessive amount of water away from the skin which covers the brain, and in that manner pressure on the brain is relieved. I gave him that treatment two or three dozen times at least. The cause of the swelling is alcoholic debauches. He was always intoxicated more or less. I have seen him in a condition of delirium tremens on several occasions. He would have hallucinations sensory and auditory. He was in his home when I first treated him for delirium tremens. I treated him in his home, in my office and in the hospital. His symptoms of hallucination were that he pointed out to me that he saw animals, snakes, green snakes on the floor and squirrels sitting on the bedposts, and other animals he could not describe. He would tell me what it was. I would try to have him chase them out. He said he heard voices of enemies speaking against him and threatening him. In the hallucinations the patient imagines he hears voices and sees things. In delirium tremens they imagine they see things and hear things which do not exist. The essential difference is that hallucination is the object of the senses and a delusion is a belief in the existence of a thing which has no foundation in fact. I would inject salt and sugar in the veins. Sometimes the attack would last another day. After an attack of delirium tremens he was extremely exhausted and unable to feed himself. I diagnosed him and treated him on that basis. He was always intoxicated and did not know what he was doing. He was unaccountable. Chronic alcoholism and psychosis blend with each other. He was unable to stand or walk and had no idea of the value of things around him. What we would call unaccountable. When a man is always intoxicated as he was, we call him incompetent and unable to observe, to base an opinion, handle his estate and possessions. I would call him incompetent as a thorough chronic alcoholic. I have attended him when he was quite sober, but not entirely sober. On occasions he told me that he drank four or five quarts of either whiskey or brandy in three days in his home. During the time I observed him he was getting worse. The latter part of 1933 he lost all interest in his wife. He neglected her, he was not interested in his house, in his garden, most of the things that people who are normal are interested in. He neglected his clothes, did not wash his face, did not button his coat. Just prior to Mrs. Arnold's passing away he had a very bad attack of delirium tremens. The lady next door telephoned to me and I went out to his house. He threatened to commit suicide, saying, ‘I am tired of living.’ I found a bottle of strychnine under his bed mattress. At that time he saw snakes, squirrels and heard people speaking. We bundled him up and put him in the machine and took him to the general hospital and tied him to the bed and gave him bromides to quiet him and tried to get him to sleep. One who is suffering from chronic alcoholism as I have characterized Mr. Arnold—it is a progressive condition. He kept on drinking more and more, and consequently he neglected himself, his wife and his home duties, hearing voices, seeing animals. There are two things, both as a disease of the mind and the destruction of the brain tissues and of the brain itself. It has an effect on the central system, which is the brain and the spinal cord, and those suffering from chronic alcoholism suffer a degeneration of the cells of the brain on account of the frequent swelling of the membranes that are around the brain. It is pressed upon and that pressure interferes with the circulation and the nerves which extend out from the brain and as the centers of our coordinative movements and natural movements of our arms and legs are situated in the brain; therefore, we know that people who are subject to chronic alcoholism find it always interferes with the movements of the arms and legs, which it did in this instance. He could not walk. He would stagger. He could not hold a glass of whiskey. The faculty of thinking and reasoning is located in this part of the brain that we call, in the medical language, the left frontal convolution. There is a certain little fold in the brain up here. In Mr. Arnold's particular case I believe that the power of thinking was interfered with, because of the fact that he was a chronic alcoholic. We know that people who constantly drink have delirium tremens, cannot think in a rational manner. After an alcoholic debauch the circulation is interfered with, the flow begins to stop, the cells shrink up, and with the shrinking of the cells our thinking is interfered with. The cells are more or less destroyed in accordance with the amount of alcohol imbibed. In Mr. Arnold's particular case, in my opinion, according to the rules of law of medicine, the brain cells situated in that portion of the brain where we do our thinking, were injured or damaged or destroyed. After 1933 I had opportunity to observe Mr. Arnold's ability to remember. He had an impaired memory. The most peculiar erratic things that happen in the life of a chronic alcoholic are that he supposes things that never happened or took place. There is no fixed rule as to what may happen. He had a positive Romberg condition in which he could not balance. In most alcoholics, place them up against a wall, stand them up with their heels together and ask them to close their eyes. This is the test of Romberg and is used for the purpose of showing the balancing of the brain and in this section, the back part of the brain. He staggered all the time, not once in awhile, but always, and furthermore, he staggered with his eyes open. He had unequal pupils. One was bigger and larger than the other, which indicates a disturbance back in the brain. I looked into the back of his eyes with my ophthalmoscope to study the back of his eye where the optic nerve comes in from the brain, and they were interfered with to a certain extent. The man could hardly see. He staggered. He had to do so. In the background of his eye is what is called the optic nerve shooting off from the brain, that goes into the back of the eye and spreads out forming a cup, and that cup is situated in the form of a heart so all the impressions and all the pictures we see come to the point here. In order to see, we must have blood sent to the eye, and in order to breathe we must have blood sent to the brain and the lungs, and when we use a certain instrument to look into a person's eye, then we can see the size and the shape and the condition of the blood vessels in the bottom of that eye. If something is wrong he can see less blood going into that eye. It becomes contracted, smaller. They become tortuous or twisted, and all that I found in his eye on the many occasions when I used my ophthalmoscope. It was indicative of a brain disturbance due to alcoholism. The cells of the brain generally degenerate as the blood supply is interfered with. The entire brain can be affected. Mr. Arnold had trouble with his liver, cirrhosis of the liver, which in plain language means hardening of the liver to such an extent that his legs swelled up, and in English that is called dropsy. He had a dropsical condition and sometimes his abdomen swelled up and became filled with water, which was caused by alcoholism. He had arthritis, trouble with his joints and his spine, lumbago, and hardening of the arteries, arteriosclerosis and high blood pressure. The latter means a condition of the cells of the blood vessels were hardened to such an extent they sometimes became brittle. He suffered from an emotional disturbance, he told me. He wanted pleasant company. He feared certain enemies were talking about him. He liked to go out and have a good time, he said, once in awhile. On one occasion when he had a small attack of delirium tremens, I counted over $300 in bills lying on the kitchen table, on the oven of the stove and on the floor. He did not touch them, but I counted the money and there were two ladies in the room at that time. Mrs. Arnold brought Mr. Arnold to my office in Santa Rosa many times when I treated him for alcoholism. He had no memory at all. He could not remember from one day to another the orders I gave him, so I had to give the orders to the other people with him and his wife. What to eat and drink and what not to eat and drink, and to go to bed at seven o'clock. Common orders for sick people by a common doctor. We hold that when the cells of the brain are destroyed as the result of chronic alcoholism, they may be recovered to some extent in the very early stages if we can make them stop in time, but they never completely recover. In the latter stages following excessives of alcoholic indulgences, those cells are absolutely destroyed and can never be replaced. I saw Mr. Arnold several times after his wife died. A few times he came to the office, otherwise I met him on the street up until close to when he died. I would give him a test, eyes closed, stand up, and then he would keel over, which revealed that the center for coordinating movement was destroyed. He was always drunk. The last time I saw him was possibly a month before his death. I considered him of unsound mind on May 6, 1936.” (The date when the will was executed.)

Dr. A.A. Thurlow, witness called on behalf of contestant, testified:

“Regular licensed physician practicing in Santa Rosa since 1919. Practiced six or seven years in the Central Oklahoma Hospital where he took care of alcoholics and drug addicts. From that place I went into the army service and was two and a half years at Eldridge and about half a year at Talmadge where I came in contact with alcoholics. I knew Hobart Arnold during his lifetime and was called to give him medical aid on several occasions between September of 1935 and the spring of 1936. * Delirium tremens, if repeated over a period of years, causes an edema of the brain, an increase of serum which makes the brain tissues somewhat soggy, you might call it. It is invariably followed by deterioration of the brain cells. There would be an injury to the cortical nerve which is a part of the brain, and especially that is deteriorated by repeated edema of the brain. It is the external surface of the brain, the cortex, which is the functioning part of the brain. Repeated conditions of delirium tremens and intoxication over a period of years would deteriorate all the brain structures and affects the mental functions. I last saw Mr. Arnold in the spring of 1936 at the residence of Mrs. Logan. If there is an injury to the brain resulting from the excessive use of intoxicating liquors leading to delirium tremens, and repeated over a period of years, I would say there can never be a complete restoration of mind. I met Mr. Arnold once on the street in his lifetime and he was drunk. During my observation of Hobart L. Arnold during his lifetime, at his home and in the hospital, and at the time when he was discharged from the hospital, I would say that he was of unsound mind. On two occasions I held him in the hospital a little longer time in order to be able to arrange with someone to supervise him after he left the hospital because I did not think he had enough judgment to take care of himself.”

It also appears from the record that Hobart Arnold, as a result of his continuous indulgence in intoxicating liquors, suffered recurrent attacks of delirium tremens, and the evidence discloses he was hospitalized for treatment of these attacks on the following dates: From September 27 to September 30, 1935; from January 15 to January 21, 1936; from March 6 to March 9, 1936; and that subsequently his attacks of delirium tremens became more frequent and of longer duration.

Numerous intimate acquaintances testified that the testator was almost continually intoxicated and irrational.

In our opinion the evidence was sufficient to justify a finding to the effect that the testator was not competent to make the will on the date it bears, giving contestant's evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from it. The authorities are to the effect that if, upon the evidence adduced, reasonable men might differ as to whether the testator was of unsound mind, the motion should have been denied. That reasonable men have so differed is illustrated here by the fact that twelve men and women found one way on this question of fact, and the trial judge another.

It is contended by respondents that there is no evidence showing the actual condition of the testator at the time the will was executed. Dr. Pleth, his family physician, testified that he considered Arnold of unsound mind on May 6, 1936, the date of the execution of the will. In addition to this, the facts and circumstances relating to the conduct and physical condition of the testator, prior and subsequent to the making of the will, may properly form the basis for the conclusion reached here by the jury. In Estate of Ivey, 94 Cal.App. 576–587, 271 P. 559, 563, it is said: “As hereinbefore suggested, while the ultimate question always is whether, at the very instant the will was executed, was the testator of sound mind, nevertheless testamentary capacity may be indicated by circumstances and conditions surrounding the testator both before and after the execution of the will, respectively, just as certainly, clearly, and unmistakably as by evidence of what was the general conduct and condition of the testator at the very instant that the testator affixed his name to the instrument.”

See, also, Estate of Sexton, supra.

We have examined the authorities cited by respondents. They leave no doubt that the courts have gone very far in the matter of the quantum of evidence necessary to establish want of testamentary capacity—much further, in fact, than is required where the same issues are presented in other legal proceedings and actions. It has been held that an insane man may make a will. Estate of Chevallier, 159 Cal. 161, 113 P. 130. Ability to transact ordinary business is not the standard of legal capacity. Estate of Sexton, supra. To the average juryman, instructions embodying the foregoing rules of evidence must be bewildering in the extreme, and he is prone to conclude that it is just another exhibition of legal sophistry. If the rules governing proof of mental capacity were the same as in other cases, much of this confusion would be obviated. It may be that juries are too willing to seize upon a very slight pretext to overturn a will, but to many it appears doubtful if this is a justification for the courts to attempt a circumvention of this tendency by adding to the burden ordinarily imposed by law upon a party who has the burden of proving a fact. If we were to hold the evidence here to be insufficient, the rules stated would be still further extended. We have examined the authorities relied upon by respondents, and in none of the cases cited were the evidences of want of testamentary capacity as great in volume and probative force as we find here. As stated by Houser, J., in the Ivey case, supra: “After all that may be said or written affecting any particular case, the law as therein laid down has its application more peculiarly to that one case; and, while the principle of law therein announced may have its application to other cases, the decision of each case must ultimately rest upon its own facts.”

Respondents also rely upon that line of cases which hold that proof of the habit of drinking intoxicating liquor is not sufficient to establish incapacity to make a will. Estate of Carithers, 156 Cal. 422, 105 P. 127. In that and similar cases there was no evidence which showed that the continued and excessive use of liquor had caused a disease and destruction of the brain tissue, resulting in loss of memory and the impairment of other faculties as related by Dr. Pleth. Nor can the positive testimony of the family physician that the testator was of unsound mind when the will was executed, be dismissed with the statement that he had not seen his patient often enough. That objection goes to the weight of the testimony, and we are not permitted here to weigh the evidence. The same rule applies to the argument that the will itself establishes the fact that there was testamentary capacity. It may be some evidence of the fact, but certainly it is not conclusive to the extent that all other evidence to the contrary must be disregarded.

We are satisfied that the evidence shows, or tends to show, that the testator did not have testamentary capacity at the time the will was executed, bearing in mind the rule that on a motion of this character it is the duty of the court to resolve in appellant's favor all conflicts of evidence and to give him the benefit of all legitimate inferences.

The judgment is reversed, and the trial court directed to enter judgment upon the verdict as rendered.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.

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