IN RE: SPROSTON'S ESTATE.a1

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District Court of Appeal, Second District, Division 1, California.

IN RE: SPROSTON'S ESTATE.a1 SPROSTON v. LATTER et al.

Civ. 9956.

Decided: December 20, 1934

Leo F. Falder and Paul A. Tschirgi, both of Los Angeles, for appellants. G. Harold Janeway and S. T. Hankey, both of Los Angeles, for respondent.

This appeal is brought by L. B. Latter, executor of the will of Frank Sproston, and his wife, Margaret K. Latter, proponents in a contest filed after probate to the will of Frank Sproston by Francis Godfrey Sproston, son of deceased, from a judgment entered by the court revoking the probate of the will.

The petition of contestant and respondent alleges three grounds of contest: (1) That the will was not duly executed by the decedent, (2) That deceased at the time of the alleged execution of the will was not of sound and disposing mind and memory. (3) That, at the time of signing the alleged will, the testator “was acting under the undue influence of proponents Mr. and Mrs. L. B. Latter,” and was “then and there * * * induced by the fraud of the said Latters to sign said instrument.”

The main point urged by appellants for a reversal of the judgment is that the findings and judgment do not find support in the evidence.

The findings do not purport to find upon the issues involved in the first ground of contest, the due execution of the will. Respondent concedes there is no evidence to support the contest on that ground. While appellants and respondent in their briefs argue the question of the incompetency of the testator to make a will, in our opinion the findings are lacking in the fundamental elements necessary to proper findings on that issue. The findings at best may be deemed adequate to present for review the issue of undue influence which is the third ground of contest. Notwithstanding our conclusion as to the inadequacy of the findings on the issue of incompetency, we have carefully examined the voluminous transcript of the evidence with a view to a consideration of the issue of incompetency as well as that of undue influence. When the evidence in the record on the question of incompetency of Frank Sproston to make a will is measured by the rule repeatedly declared by our appellate courts, it is found markedly lacking in those elements which are necessary in order to set aside the testamentary act of the deceased. This rule is comprehensively expressed in the opinion in the case of In re Estate of Perkins, 195 Cal. 701, 235 P. 45, 46, as follows:

“It is well settled that, upon the contest of a will on the ground that the deceased was of unsound mind, the actual mental condition of the testatrix at the time of the execution of the will is the question to be determined. [Citing cases.] 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.

“The presumption is always that a person is sane, and the burden is always upon the contestants of the will to show affirmatively, and by a preponderance of the evidence, that the testatrix was of unsound mind at the time of the execution of the will. [Citing cases.] Insanity exists as a matter of law only from the time it is shown to exist and proof of subsequent insanity will not create nor carry a presumption of its past existence. [Citing case.]

“Every mental departure from the normal will not destroy a testamentary disposition, otherwise valid, of the testatrix' estate. It is not the rule of law that no person who is insane may make a valid will. The real rule is that the will of a person, who by reason of insanity is incapable of making valid testamentary disposition of his estate, shall not be upheld. [Citing cases.]

“Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) Insanity of such broad character as to establish mental incompetency generally; or (2) some specific and narrower form of insanity under which the testator is the victim of some hallucination or delusion. Even in the latter class of cases, it is not sufficient merely to establish that a testator was the victim of some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion; that the hallucination or delusion bore directly upon and influenced the creation and terms of the testamentary instrument. The evidence must establish, in addition to the fact of the existence of the hallucinations or delusions, the fact that by reason of these hallucinations or delusions the testatrix devised or bequeathed her property in a way which, except for the existence of such delusions, she would not have done. In short, the abnormality of mind must have had a direct influence upon the testamentary act. [Citing cases.]”

The only evidence in the record tending to indicate any mental derangement of the testator is the testimony of several witnesses that on occasions prior to the day on which the will was made as well as on days after the will was made the testator had periods when he did not seem to know where he was; that on several occasions he had delusions, and at times his mind seemed to wander. These same witnesses, however, testified that on the occasions of their visits when they observed this indication of mental disturbances the testator always knew them; that he had lucid periods when he talked intelligently and was rational. There is no evidence whatever that would tend to support a finding of general mental incompetency. At best the evidence only tended to show the testator was suffering from what the opinion in Re Estate of Perkins, supra, characterizes under the second classification of insanity, as a “specific and narrower form of insanity.” The evidence falls far short of that required to justify a finding “that the will was the creature or product of any hallucination or delusion,” entertained by the testator. In re Estate of Shay, 196 Cal. 355, 237 P. 1079 (cases therein cited); In re Estate of Stump, 202 Cal. 308, 260 P. 543; In re Estate of Smith, 200 Cal. 152, 252 P. 325 (cases therein cited).

The record is equally lacking in the evidence necessary to support a finding that the will was the product of the undue influence of proponents L. B. Latter and his wife, Margaret K. Latter.

Undue influence has been repeatedly defined to be “the exercise of acts or conduct by one person toward another person by means of which the mind of the latter is subjugated to the will of the person seeking to control it.” In re Estate of Smith, 200 Cal. 152, 252 P. 325, 328. In Re Estate of Bryson, 191 Cal. 521, 217 P. 525, 533, the court declared the rule, repeatedly used as a measure in determining whether or not a will was the product of undue influence, in the following statement: “‘In order to establish that a will has been executed under undue influence, it is necessary to show, not only that such influence has been exercised, but also that it has produced an effect upon the mind of the testator, by which the will which he executes is not the expression of his own desires.’ * * * ‘The presumption of undue influence is not raised by proof of interest and opportunity alone. * * * In order to set aside a will for undue influence, there must be substantial proof of a pressure which overpowered the volition of the testator at the time the will was made.”’

Frank Sproston and the Latters had been close friends for a number of years. To his acquaintances in general, he was known as a man without family. To a few of his intimates, under a pledge of secrecy, he confided the information that when a young man in England he had married and had a child. It appears that this marriage took place in 1886, but that a few months later, before the contestant, his son, was born, Sproston left England without informing his wife as to where he was going. After leaving, he never had communicated with her, and never saw or heard from his son. Some twenty years after he left home he returned to England for a visit, when he learned that his wife had died and his son had disappeared.

For several years prior to his decease Sproston was afflicted with diabetes. During this period, as well as a period of incapacity due to a broken leg, Sproston was the recipient of many friendly courtesies from the Latters. On the morning of March 16, 1932, in response to a request from Sproston, Latter went to the house of Mrs. Cole, where Sproston had a room, for the purpose of taking him to the California Lutheran Hospital. Sproston's friends, if not he himself, had been informed by Sproston's physician that he was in a precarious condition. Before leaving for the hospital, Latter, in conversation with Mrs. Cole, who was a friend of Sproston, suggested that Sproston ought to make his will, which suggestion apparently was approved by Mrs. Cole, for she accompanied Latter to the room of Sproston, when Latter asked him if he didn't want to make a will, to which Sproston replied, “Mr. Latter that is all I hear out of you.” On March 21st, five days later, while Mr. and Mrs. Latter were visiting Sproston at the hospital, Sproston asked Latter if he would telephone Dr. Tarnutzer, his physician and lodge brother, to bring or send to the hospital a lawyer, as he wanted to make a will. Later in the day an attorney by the name of William M. McCartney came to the hospital and informed Sproston and the Latters, who were still there, that he had come at the request of Dr. Tarnutzer. Seating himself close to Sproston at his bedside, the lawyer and Sproston held an extended conversation. When the lawyer came into the room, Mrs. Latter left. In the room at the time were three other patients. The conversation between the lawyer and Sproston was evidently carried on in a low tone of voice, for it does not appear that any one overheard their conversation other than occasional words. Mr. McCartney testified that in the conversation Sproston asked a number of questions about the law affecting estates and the requirements as to a will, all of which questions the lawyer answered. Sproston in turn answered the lawyer's questions and told him how he wanted his estate to be distributed. The lawyer was a stranger to Sproston and the Latters. During the conversation between the lawyer and Sproston, as also the preparation and execution of the will, no question was asked of the Latters, and no remark or suggestion made by them to either Sproston or the lawyer relating to the contents of the will. Concerning the insertion in the will of the sentence, “any heir not herein named has been intentionally omitted and they have not been forgotten by me,” McCartney testified that during their conversation Sproston said to him, “Should I have any heirs that I am unaware of, could you fix it up so that they could not get anything?” to which the lawyer replied that he could, and that by reason of this request he inserted in the will the quoted words. McCartney further testified that all of the information he had for the preparation of the will he received from the testator, who told him that the persons to whom he was giving his estate had been kind to him and he wanted them to have his property. There is no conflict in the testimony relating to the preparation, drawing, and execution of the will or what occurred in Sproston's room on that day.

The only other evidence in the record that may be deemed competent as an external fact in support of the alleged undue influence is the testimony of one Mrs. Pearn, a neighbor and acquaintance of Sproston in 1930. She testified that some time early in that year, which was more than two years before Sproston's death, while she was in the hallway of the house where he lived, she overheard Sproston say: “I will not, I don't intend to make a will, I am not going to.” She testified that a few minutes later she saw Latter come out of Sproston's room.

The foregoing recital fairly states all the competent evidence that may be regarded as bearing upon the external facts constituting the undue influence of the Latters. There is other testimony of witnesses which purports to relate statements made by Sproston, not in the presence of the Latters, but prior to and subsequent to the making of the will, wherein Sproston stated that the Latters or Mr. Latter requested or suggested that he make a will and leave all his property to them. This testimony was competent to show the state of mind of the testator at the time the remarks were made, but, as proof of the exercise of undue influence by the Latters on the testamentary act of Sproston at the time he made his will, this testimony is hearsay and incompetent. Estate of Calkins, 112 Cal. 296, 44 P. 577; In re Estate of Arnold, 147 Cal. 583, 82 P. 252; In re Estate of Snowball, 157 Cal. 301, 107 P. 598.

Giving to the testimony that Latter on more than one occasion suggested to Sproston that he make a will, and the fact that Sproston resented the suggestion and retorted that he would not do so, the fullest weight possible, with all the inferences that may reasonably be drawn therefrom, it falls far short of that which will justify a finding that the Latters exercised upon Sproston such “pressure which overpowered the volition of the testator at the time the will was made,” so, that the will “is not the expression” of Sproston's desires. There is no evidence competent on the issue of external facts of undue influence that the Latters ever urged or requested Sproston to make a will leaving them his property or a will leaving his property to the persons named in his will. It may be conceded that there is sufficient evidence to support a finding that at certain times before and after the will was made Sproston's mental condition was such that he believed at such times that the Latters wanted his property, or were trying to get him to will it to them, or that he felt he was under their influence. But such conditions of mind of the testator constitute no evidence whatever of the external facts of the undue influence of the Latters. To set aside the will on the ground of the undue influence of the Latters, there must be competent evidence of acts or conduct on the part of the Latters that constituted such pressure upon Sproston at the time he made his will as to have induced him to leave his property to the persons named in the will instead of leaving it to others, which he would have done but for such acts or conduct. The evidence is markedly lacking in this essential element.

Respondent contends that a confidential relation existed between the testator and the Latters, and by reason thereof the burden rested upon proponents to prove that in making the will the testator was free from any undue influence on their part. There is no merit in this contention. The most that the evidence shows is that the Latters were long-time friends of the testator, that on one occasion Mr. Latter borrowed some money from him, and on several other occasions Latter as a real estate broker negotiated some loans for him. These circumstances do not justify a finding of confidential relations. In re Bacigalupi's Estate, 202 Cal. 450, 261 P. 470; In re Estate of Hinde, 200 Cal. 710, 254 P. 561; Frantz v. Porter, 132 Cal. 49, 64 P. 92.

Respondent also urges in support of his third ground of contest that the will is an unnatural will, in that the testator left nothing to his son, but gave all of his estate to those who were not of kin. There is no merit in this contention. As already pointed out, Sproston had never seen the son born after he left home almost fifty years previous to the time he made his will. Nor had he ever had any communication with him. Whether or not, at the time the testator made his will, his son was living or dead was a mere matter of conjecture with him. Under these circumstances, it is not unnatural or strange that he should leave his estate to those who had befriended him, especially during the period of his illness.

Furthermore, even if the charge that the will is unnatural could be sustained, this alone would not justify a court in setting it aside. In re Estate of Smith, 200 Cal. 152, 252 P. 325; In re Estate of Martin, 170 Cal. 657, 151 P. 138.

Under the evidence and authorities, we are satisfied that the will in question is a valid expression by the testator of the testamentary disposition of his estate.

Judgment is reversed.

I dissent. Particularly am I not in accord with the conclusion reached by my associates to the effect that the evidence adduced on the trial of the contest of the will was insufficient to sustain the finding made by the trial court in substance that the execution of the will was obtained by the exercise of undue influence exerted upon the mind of the testator. Not that any criticism is due with regard to the statement of essential facts contained within the prevailing opinion, but that, if those facts, together with certain omitted facts which have a direct bearing both upon the issue of mental capacity of the testator and the issue of undue influence exercised upon him, and the inferences properly deducible from all such evidence, were to be effectually marshaled and taken into consideration, sufficient evidence will appear upon which properly may be rested the finding made by the trial court. It should be remembered that with respect to the quantity and the quality of evidence necessary to sustain a finding of undue influence the rule is no different from that which obtains with reference to a finding of fact by the trial court on any issue in any other kind of a civil action. That rule is universal that, if in essential particulars such a finding is supported by any substantial evidence, an appellate court is powerless to disturb it. In my opinion, the judgment of the trial court should be affirmed.

HAHN, Justice pro tem.

I concur: YORK, J.