IN RE: the ESTATE of Willinore M. FOSSELMAN

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District Court of Appeal, Fourth District, California.

IN RE: the ESTATE of Willinore M. FOSSELMAN, Deceased. Charles F. SALKELD, as Executor of the Last Will and Testament of Willinore M. Fosselman, Deceased, and Adele Marsh Rowe, Contestants and Respondents, v. Harriet PALMER, Defendant and Appellant.*

Civ. 5428.

Decided: September 14, 1956

George R. McClenahan, San Diego, for appellant. Luce, Forward, Kunzel & Scripps, San Diego, for respondents.

Appellant Harriet Palmer filed a petition for probate of two holographic documents claimed to be codicils to the last will and testament of Willinore M. Fosselman, deceased. A contest was filed to the admission of said instruments by the respondents Charles F. Salkeld, as executor, and Adele Marsh Rowe, as an heir, claiming that the testatrix was of unsound mind at the time of the execution of the two documents and therefore lacked testamentary capacity. A trial of this issue was had by the court without a jury and judgment was entered denying appellant's petition. Harriet Palmer, the beneficiary named in the two documents involved, appeals from the judgment on the ground that there is no substantial evidence to sustain the decision of the trial court that the testatrix was of unsound mind when she executed the said documents; that the court committed prejudicial error in admitting the testimony of Dr. Lengyel, a psychiatrist; and that the court erred in giving undue weight to the testimony of certain witnesses called by the contestants.

Willinore M. Fosselman died in San Diego on March 25, 1955. At the time of her death she was 88 years of age and had resided in San Diego since about April 1, 1950. Prior to that date she had resided in New York and there maintained with the Bankers Trust Company of New York a security-custodian account which, at the time of her death, was of the approximate value of $460,000. Until the time of her death, her financial affairs were largely under the supervision and control of Charles F. Salkeld, vice-president of said Bankers Trust Company.

On or about April 1, 1950, Mrs. Fosselman fell in the U. S. Grant Hotel in San Diego and suffered a fracture of her left hip. She was immediately treated by Dr. R. L. Hippen and was taken to her room on a stretcher. Later, she was removed to the Mercy Hospital where she remained for approximately seven weeks. While she was in the hospital, she became quite confused, developed ‘a uremia’, and for a time was in a coma. She was moved from the hospital to a residence in San Diego, purchased with her funds, and was attended there by Dr. Hippen until her death.

Dr. Hippen testified that Mrs. Fosselman was ‘what we generally call a senility problem. She wasn't able to care for herself entirely and she on several occasions became somewhat irrational’; that her mental progress was one of gradual deterioration and she was unable to comprehend what was going on around her; that she was never completely associated about time and ‘got all mixed up’; that she would occasionally know she was in San Diego or California but frequently thought she was back in New York City; that she did not associate the persons around her as nurses and never quite comprehended who they were or what they were and frequently got them mixed up with people she had known in the past; that she thought she was rather destitute and frequently was disappointed when he came to see her because she was afraid she would not be able to pay his bill; that from 1952 on she was suffering from ‘senile dementia’, a generalized softening of the brain due to the impaired blood supply; that in this opinion from 1952 on she was unable to understand or comprehend the nature and extent of her property and the situation with reference to the people who might have been natural objects of her bounty; that her decline was accelerated by her fall in the hotel; that she had a cardiac failure and he had to give her medicine to relieve the swelling in her ankles and feet and to control a cardiac irregularity which she had developed; that perhaps from 1953 on she completely forgot about fracturing her hip, forgot she was ever in the hospital, and she was not able to discuss it at all.

After Mrs. Fosselman was released from the hospital and removed to her home, around the clock nursing care was provided for her and Mrs. Palmer, the proponent herein, was one of the nurses so engaged. She commenced work in the spring of 1952 and worked daily from 7:00 a. m. until 3:00 p. m. until the date of Mrs. Fosselman's death on March 25, 1955. She testified that on January 12, 1955, Mrs. Fosselman stated that there was something she wanted to do before she forgot it and handed her (Mrs. Palmer) a piece of paper, stating, ‘Here, honey, you read this.’ Mrs. Palmer read it and replied, ‘Well, you don't have to do anything for me’, and Mrs. Fosselman said, ‘Well, I know it. Do you think it is all right?’ Mrs. Palmer replied, ‘Yes, it is.’ Mrs. Fosselman then stated, ‘Now, if you don't think this is all right, you take it to a lawyer and have it checked.’ The document which Mrs. Fosselman had handed to Mrs. Palmer was holographic and was as follows:

‘Jan. 12th, 1955

‘When I die, I want this house to be given to Mrs. Harriet Palmer for her to live in if she chooses.

‘Willinore Fosselman

‘4656–49th St.’

Mrs. Fosselman then took the document to the living room and later brought it back to Mrs. Palmer, stating, ‘Now you are not to open this until after I die or pass away.’ Mrs. Palmer kept the document until after the death of Mrs. Fosselman and it is one of the two documents which were offered as codicils of the last will and testament of Mrs. Fosselman.

The day after the death of Mrs. Fosselman, according to the testimony of Mrs. Palmer, she found in the left hand corner of a drawer of Mrs. Fosselman's desk, wrapped up in Kleenex, and all sealed, another writing, dated June 17, 1953, and reading as follows:

‘I give and bequeath to my friend, Harriet Palmer, the sum of ten thousand 10,000 June 17th 1953 to be paid to her after my death (death).

‘Willinore M. Fosselman

‘4656–49th St.

‘San Diego, Cal.’

This is the second document which was offered as a codicil to the last will of Mrs. Fosselman. No one had ever seen the document dated January 12, 1955, except Mrs. Palmer and her attorney until it was offered in evidence herein. Mrs. Fosselman had never discussed such codicils with her business representatives, her attorney, her doctor, or her nurses. The document dated June 17, 1953, was never seen or known to anyone until it was found tucked away in the desk drawer of Mrs. Fosselman after her death.

Charles F. Salkeld visited Mrs. Fosselman several times in San Diego during the last five years of her life. He testified that on his last visit in 1954 she could not recognize him; that she started deteriorating in October, 1950; that she was forgetful and confused; that at times she thought she was in New York; that she remembered old events but did not remember anything recent; that she constantly thought she didn't have enough money and when he tried to explain to her ‘it was hopeless, she couldn't absorb it’; that from the fall of 1952 on she was not aware of the nature and extent of her property or of the nature of her relationship to those who would be the natural objects of her bounty or to the people who would be affected by any wills or codicils; that she referred to members of her family as being alive when they were in fact dead; that she had the idea she owned a house in New York when she had never owned one there.

Edgar A. Luce, one of the attorneys representing Mrs. Fosselman, testified that he had visited her on the average of once a week from the time she was in the hospital until the time of her death and he recited many facts which indicated to him that she was mentally unsound. He testified that she became very confused, distracted, forgetful, repetitious and senile. He gave his opinion, as an intimate acquaintance of Mrs. Fosselman, that she did not understand or comprehend the nature and character of her property; that she was definitely mentally imcompetent during all the time he knew her; that she did not know anything about her property, business affairs, or who was living or who was dead among her family; that she told him Mrs. Palmer had worked for mother in Kansas City; that he told her this was not true; that Mrs. Palmer lived in San Diego, had never been in Kansas City and that the period of time to which she referred was before Mrs. Palmer was born.

Lola R. Stephens, one of the nurses in constant attendance on Mrs. Fosselman from June, 1950, until the time of her death, testified as to many incidents, actions and statements of Mrs. Fosselman and stated that she stated many times that Mrs. Palmer had worked for her mother, although Mrs. Stephens repeatedly corrected her; that Mrs. Fosselman could not comprehend or understand any reading; that she was confused as to where she was; that she thought her brothers would pay her bills; that she hid her money in her stockings and other places, was constantly worried about finances, and was confused most of the time.

Mr. Lumpkin, who acted as Mrs. Fosselman's chauffeur, testified that she thought she had known Mrs. Palmer in Kansas City and further stated that she did not know if she were in San Diego or New York and wanted to be driven down to the lake or the river. Two other witnesses, Cecilia Burns and Mrs. Rose Ellis, testified to incidents showing confusion, lack of intelligence and comprehension and a gradual deterioration on the part of Mrs. Fosselman.

Dr. Carl Lengyel, county psychiatrist and head of the psychopathic ward of the San Diego county hospital, and whose qualifications were stipulated to by counsel, answered a long hypothetical question which was submitted to him setting out the circumstances testified to by the various witnesses and stated that in his opinion from 1952 until the time of her death Mrs. Fosselman was of unsound mind and was suffering from brain disease due probably from cerebral arteriosclerosis and senile changes and that during that period she did not comprehend the nature of her property nor the extent thereof. He described in detail her symptoms which indicated the unsoundness of her mind and stated that he believed that she was intellectually impaired to the point that she was of unsound mind and that in his opinion she was insane during that period. The facts related to the doctor in the hypothetical questions asked of him were not objected to by counsel.

Several neighbor women who occasionally called upon Mrs. Fosselman when she was living in San Diego testified in behalf of Mrs. Palmer that they did not believe Mrs. Fosselman was insane although they admitted many of the incidents related by the contestant's witnesses such as constant repetition and confusion of mind on the part of Mrs. Fosselman.

We conclude there was substantial evidence herein to sustain the decision of the trial court that the testatrix was of unsound mind when she executed the disputed documents.

As is said in Re Estate of Frank, 102 Cal.App.2d 126, 128–129, 226 P.2d 767, 768:

‘The function of an appellate court is no different on an appeal from a judgment denying probate of a will because of mental incompetency than in any other case. ‘All conflicts must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial judge or jury. In re Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689; In re Estate of Teel, 25 Cal.2d 520, 154 P.2d 384.’ In re Estate of Trefren, 86 Cal.App.2d 139, 142, 194 P.2d 574, 575.'

We are satisfied that the findings and decision are amply supported by competent and legally sufficient evidence, and beyond this we are not required to go. Rodgers v. Roseville Gold Dredging Co., 135 Cal.App.2d 6, 10, 286 P.2d 536.

While several neighbors and friends of Mrs. Fosselman testified that they did not believe that she was insane, such testimony merely created a conflict in the evidence and the weight to be given to such testimony was for the trial court. Hughes v. Grandy, 78 Cal.App.2d 555, 567, 177 P.2d 939.

In re Estate of Sexton, 199 Cal. 759, 764–765, 251 P. 778, 780, the rule is stated:

‘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. In re Estate of Motz, supra [136 Cal. 558, 69 P. 294]; In re Estate of Dole, 147 Cal. 188, 81 P. 534; In re Estate of Huston, 163 Cal. 166, 124 P. 852; In re Estate of De Laveaga, 165 Cal. 607, 133 P. 307; In re Estate of Casarotti, 184 Cal. 73, 192 P. 1085. The actual mental condition of the testator at the time of the execution of the will is the question to be determined. In re Estate of Perkins, 195 Cal. 699, 235 P. 45; 26 Cal.Jur. 635.’

In the instant case there was substantial evidence that Mrs. Fosselman did not have the sound and disposing mind and memory required by this rule at the time she executed the documents involved herein.

We find no prejudicial error in the admission of the testimony of Dr. Lengyel, psychiatrist. The weight of his testimony was for the determination of the trial court.

The judgment is affirmed.

MUSSELL, Justice.

GRIFFIN, Acting P. J., and BURCH, J. pro tem., concur.