IN RE: FLATAU'S ESTATE.†

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District Court of Appeal, Second District, Division 2, California.

IN RE: FLATAU'S ESTATE.† LEVY et al. v. FLATAU.

Civ. 11462.

Decided: June 17, 1937

Gibson, Dunn & Crutcher and H. F. Prince, all of Los Angeles (Robert F. Schwarz, of Los Angeles, of counsel), for appellant. Alfred J. Smallberg, of Los Angeles, for respondents Jacob L. Flatau, Jack Flatau, Laura Flatau, Blanche Flatau, Natalie Oringer, Mrs. Marion Flatau Markus, Fannie Marx Singer, Mrs. Dorothy Marx Byrnes, and Fannie Flatau. Morin Newell, Brown & Hamill and Stanley K. Brown, all of Pasadena, for respondent Celia Flatau.

This appeal, transferred by the Supreme Court to this court for decision pursuant to the provisions of article 6, section 4c, of the Constitution of the state of California, is from a judgment entered on the granting of respondent's motion for a directed verdict, admitting to probate a purported will of E. S. Flatau dated December 24, 1935.

Viewing the evidence most favorable to appellant, as we must in reviewing a judgment based upon a directed verdict. [In re Estate of Lances, 216 Cal. 397, 400, 14 P.(2d) 768], the material facts are these:

Appellant, the adopted daughter of decedent, filed a contest in opposition to admission to probate of a document purporting to be his last will and testament dated December 24, 1935, on the ground of (1) mental incapacity of decedent to execute a will, and (2) undue influence of decedent's brother Jacob L. Flatau in procuring the alleged will.

This is the sole question necessary for us to determine:

Disregarding conflicting evidence, conceding as true all of appellant's evidence and indulging every reasonable inference favorable to appellant which may be drawn therefrom, was there sufficient substantial evidence to support a verdict in favor of appellant, if such verdict had been returned by the jury? In re Estate of Lances, supra.

This question must be answered in the affirmative. The law is settled that a directed verdict is permissible only when, disregarding conflicting evidence, conceding as true all of contestant's evidence, and indulging every reasonable inference favorable to the contestant which may be drawn therefrom, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of contestant, if such verdict were given. In re Estate of Lances, supra; In re Estate of Yale, 214 Cal. 115, 124, 4 P.(2d) 153; In re Estate of Caspar, 172 Cal. 147, 150, 155 P. 631.

Applying the foregoing rule to the facts in the instant case, it appears that there was substantial evidence which the jury might have believed that:

(1) At the time of the execution of the purported will decedent could barely see, he had difficulty in walking, he suffered a great deal of pain, for several days he had been kept under the influence of opiates which had a tendency to dull his mind, and within the period of twenty minutes after he had been aroused from a drug induced sleep, in the presence of one of the beneficiaries, the will was read to him and signed by him, and he died as a result of complications resulting from an operation performed less than two hours after the document was executed.

(2) A confidential relation existed between Jacob L. Flatau, the person charged with undue influence, and the decedent, in that several months prior to the execution of the purported will decedent had asked his brother to have an attorney at law examine a prior will of decedent's and that Jacob L. Flatau had taken this will to his attorney, instructed him to prepare a draft of the document which is in dispute, which after submitting to decedent Jacob L. Flatau, together with certain notes given him by the decedent, he returned to the attorney to prepare the final draft which was signed by the deceased.

(3) The attorney who prepared the will did not know decedent during his lifetime and never discussed the will with him, all of his dealings being with Jacob L. Flatau, executor and one of the beneficiaries under the purported will.

(4) Jacob L. Flatau was active in procuring the execution of the purported will, having his brother sign the document within a short time after he had been informed by one of decedent's doctors that his brother was a very sick man and it was no time to talk “will” with him.

(5) Jacob L. Flatau was named neither as executor nor beneficiary under the previous will of decedent, but named as both in the document offered for probate.

(6) The purported will was unnatural in that decedent has no natural children and only one adopted child, appellant herein, who was expressly disinherited with the sum of $1, and there was ample evidence to sustain a finding that the relationship between appellant and decedent had been one of affection and friendliness from her early childhood.

The foregoing facts were sufficient to require the submission of the question of mental incapacity and undue influence to the jury, and had it believed the evidence in support of such facts, its verdict of undue influence based on such evidence would have been sufficient to sustain the finding. In re Estate of Gallo, 61 Cal.App. 163, 176, 214 P. 496.

In view of the fact that the judgment must be reversed for the foregoing reasons, it is unnecessary for us to pass upon the other questions suggested by appellant.

The judgment is reversed and a new trial is ordered.

McCOMB, Justice.

I concur: CRAIL, P. J.

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