IN RE: DOPKINS' ESTATE.

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District Court of Appeal, Fourth District, California.

IN RE: DOPKINS' ESTATE. MacKECHNIE et al. v. OLIVER.

Civ. 3736.

Decided: February 18, 1949

H.A. Savage, of Fresno, and Joe E. Greene, of Dinuba, for appellants. Rae B. Carter, of Fresno, and L.M. Linneman & Burgess, all of Dos Palos, for respondent.

This is an appeal from a judgment in favor of proponent in a will contest and from an order denying new trial.

Virginia Estelline Dopkins was, at the time of her death on December 23, 1946, more than 90 years of age. She left an estate of approximately $40,000.00, and no issue. By the terms of the will, Lyle B. Oliver, a neighbor and friend, was appointed executor and the entire estate was bequeathed to him. Objections to the probate of the will were filed by two groups of contestants. Those in the first group were related to the deceased husband of the testatrix, and two of those in the second group were related to a sister of decedent's mother, and no evidence was offered to establish the relationship to decedent, if any, of the other parties in the second group. Opposition to the probate of the will was based on the ground that the deceased was of unsound mind at the time of the execution of the will, and on the further ground that the will was procured by the undue influence of Lyle B. Oliver. The issues were tried by jury and resulted in findings in favor of proponent of the will on both issues.

The record, as far as the testimony taken at the trial is concerned, consists of an Engrossed Settled Statement on Appeal and the reporter's transcript of the testimony of Lyle B. Oliver. The statement contains the following declaration:

“The testimony of all witnesses disclosed that the decedent directed all her business operations and affairs, continuously, both before and after the execution of the will, and that by virtue of such direction her properties were steadily increased and enhanced in value.

“While the testimony showed certain personal eccentricities on the part of the decedent, no witness testified that in his or her opinion the decedent lacked capacity to understand the nature of the testamentary act; to recall her property, or to remember the relationship of persons related to her.”

Contestants first maintain that the court erred in refusing to give the following requested instruction:

“You are instructed that where a confidential relation exists between the testatrix and the beneficiary under the will, coupled with activity on the part of the beneficiary in the preparation of the will, and is profiting unduly thereby, casts upon the proponent the burden of showing that the will was not the product of such imposition and you are further instructed that the mere fact that the will was executed out of the presence of proponent does not in itself refute the charge of the imposition or presumption. It is a circumstance, however, to be considered by you.”

The evidence as to the relationship between Lyle B. Oliver, proponent of the will, and the testatrix is that decedent and her husband owned 160 acres of land in the County of Tulare; that the husband died in 1932 and Mrs. Dopkins lived on the ranch until 1945, when she sold the property to proponent's father and moved to a house in Reedley in Fresno County; that proponent was a neighbor and friend of Mrs. Dopkins and assisted her in buying groceries and depositing her checks; that in the early part of July, 1946, Mrs. Dopkins became ill and was taken to a hospital where her condition improved and she was then taken by Mr. Oliver to his home in Reedley and placed in the care of a practical nurse who was in attendance until Mrs. Dopkins died.

The evidence further shows that on or about the 24th day of July, while Mrs. Dopkins was in the hospital, she requested Mr. Oliver to secure the services of an attorney to draw a will for her, appointing Oliver as executor and leaving her entire estate to him. She also requested Oliver to direct the attorney to take such proceedings as might be required to have Oliver appointed the guardian of her person and estate upon the ground that she was physically incapable of caring for her property; that Oliver called upon Mr. Rae B. Carter, an attorney in Fresno, and communicated to him the instructions given by Mrs. Dopkins; that Mr. Carter then prepared a request for appointment of guardian and a will, and on July 30, 1946, presented the documents to Mrs. Dopkins for her consideration at the Oliver home in Reedley; that Mr. Oliver introduced Mr. Carter to Mrs. Dopkins and then left the room; that Mr. Carter explained to Mrs. Dopkins that Mr. Oliver had told him she wanted her will prepared. He then told her he had prepared the will and had also prepared the petition for appointment of Mr. Oliver as guardian in accordance with the instructions; that Mr. Carter explained to Mrs. Dopkins the effect of the request of the appointment of a guardian and the legal effect of the provisions of the will; that Mr. C.H. Green, an acquaintance of Mr. Oliver for 25 years was called in by Mr. Oliver to act as one of the subscribing witnesses, and the will was then executed, Mr. Carter being the other witness. Mrs. Dopkins at the same time signed the request for the appointment of Mr. Oliver as guardian.

The testimony of Mr. Oliver shows that he had discussed the sale of the ranch with Mrs. Dopkins several times before it was finally sold; that on one occasion she told him she wanted it understood that if she sold the ranch he was to take care of her for the rest of her life; that he was indebted to Mrs. Dopkins in the sum of $5000, evidenced by a promissory note due December 18, 1946; that while Mrs. Dopkins was still on the ranch, the subject of a guardianship was discussed with her several times and that he suggested she have the bank handle her affairs; that he made an appointment with an officer of the bank and a conference was had resulting in the preparation by the bank of a trust agreement, which agreement was never executed; that Mr. Hays of the bank suggested to Mrs. Dopkins that she should draw a will; that several times thereafter the guardianship matter and the drawing of a will were discussed by Mrs. Dopkins and Mr. Oliver and that during the time Mrs. Dopkins was in the hospital her eyes “had gone bad” and that Oliver told her then, “Now, really you have come to the point where you are going to have to make a decision on the guardianship”; that when Mrs. Dopkins was in the hospital and could not see to write her signature, Oliver told her that if she was going to make a will or wanted to make a disposal of her property, “either to the church or whoever it was supposed to go to”, that it should be accomplished pretty soon; that he did not suggest to her that he should be remembered in the will but did try to get her to make provision for Cora Rose, Bob Rose, and his father.

The petition for appointment of guardian was filed July 31, 1946, and the order appointing Lyle B. Oliver guardian of the person and estate of Mrs. Dopkins, expressly reciting that such appointment was based upon the physical incapacity of the decedent, was signed by the court on August 9, 1946.

The evidence here presented was sufficient to require the presentation of the question of undue influence as a factual matter for the determination of the jury with proper instructions as to the facts from which a presumption of undue influence would arise. As was said in Re Estate of Graves, 202 Cal. 258, 262, 259 P. 935, 936:

“Three well-established facts, among others, which are recognized as being indicative of undue influence, or a subversion of a decedent's volition, stand out clearly in the record: The relations between appellant and the decedent afforded to appellant an opportunity to control the testamentary act; the decedent's condition was such as to permit of a subversion of her freedom of will; the appellant was active in procuring the instrument to be executed. In addition, appellant unduly profited as beneficiary under the will. While none of these circumstances, standing alone, has the effect of creating a presumption against the validity of the instrument, their probative force, in combination, is to impose upon the proponent the obligation of presenting evidence of volition, and to make the question as to undue influence one of fact for the jury's determination. (26 Cal.Jur., pp. 647, 648.)”

Other cases to the same effect are, In re Estate of O'Callaghan, 82 Cal.App.2d 108, 115, 185 P.2d 659; In re Estate of Trefren, 86 Cal.App.2d 139, 145, 194 P.2d 574; In re Estate of Hampton, 39 Cal.App.2d 488, 497, 103 P.2d 611.

All of the factors essential to create a presumption of undue influence are present in the case before us and the jury should have had the benefit of a proper instruction as to the legal effect of such a presumption if they found that facts existed giving rise to it. The jury should also have been instructed that the burden in such circumstances was on the proponent of the will to show that it was not induced by coercion or fraud. The rejected instruction, while it might well have been drawn so as to more clearly express the legal principles involved, should have been given, particularly in view of the fact that the court did give other instructions in which he singled out the several necessary elements giving rise to the presumption of undue influence, and stated in effect that a confidential relationship, of itself, did not give rise to a presumption of undue influence; that profiting unduly by the will did not give rise to such undue influence; that active procuration of the execution of the will did not give rise to the presumption even where there was opportunity.

The jury was instructed as to the burden of proof in civil actions but there is no instruction as to the burden cast upon the proponent of the will under the circumstances here shown and we cannot say that the verdict of the jury would have been the same under proper instructions. The error was prejudicial and sufficient to warrant a reversal. In view of these conclusions it is unnecessary to pass upon the remaining points raised by appellants.

The notice of appeal recites that an appeal is taken from the order denying the motion for a new trial. Such an order is not appealable. McNamara v. Emmons, 36 Cal.App.2d 199, 208, 97 P.2d 503.

The judgment is reversed and the attempted appeal from the order is dismissed.

MUSSELL, Justice.

BARNARD, P.J., and GRIFFIN, J., concur.