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District Court of Appeal, Second District, Division 3, California.

Maude P. BREWER, Edith Abigail B. Johnson, also known as Edith Abigail Brewer, June B. Allender, Ross P. Brewer and Harry P. Brewer, Plaintiffs, Respondents, and Cross-Appellants, v. Abigail Parkhurst SIMPSON, also known as Abigail Parkhurst Brown, E. Ross Simpson and Ellis P. Brewer, Defendants, Abigail Parkhurst Simpson and E. Ross Simpson, Appellants and Respondents.*

Civ. 22500.

Decided: May 15, 1959

George I. Devor and Paul P. Selvin, Los Angeles, for appellant and respondent Abigail Parkhurst Simpson. Irving M. Walker, Mark Mullin, Los Angeles and Robert A. Schlesinger, Palm Springs, for appellant and respondent E. Ross Simpson. Edmond Gattone and Clifford A. Hemmerling, Los Angeles, for cross-appellants and respondents.

Cross-appeals from a judgment which impresses a trust in favor of plaintiffs on all property of defendant Abigail Parkhurst Simpson and her husband and codefendant, E. Ross Simpson.

Abigail Parkhurst Simpson, called Abigail, married George Stanley Brown, called George, about December 21, 1910. On July 21, 1936, when George was 72 years old and Abigail was 67, they executed mutual wills. Each will recited it was ‘made in consideration of a mutual Will on the part of’ the other, and ‘in pursuance to an agreement between myself and my said [husband or wife] for the making of these mutual Wills on the part of each of us, and it is understood that should I be the survivor as between myself and my said [husband or wife] and should I deem it advisable to appoint other executors in the place of those named herein, I reserve the right to do so and my said [husband or wife] shall have the like privilege so long as one of the co-executors is appointed from my family and one from the family of my said [husband or wife].’ Each will bequeathed and devised all property of the decedent to the other; and in the event the other predecease the maker, bequeathed and devised half of the property to George's kindred and half to Abigail's kindred ‘as hereinafter directed.’ There followed bequests and devises to specified relatives of George and to specified relatives of Abigail.1

On October 27, 1936 George and Abigail executed identical codicils changing one of the bequests to Abigail's sister, Mrs. Ellis.

George died on March 31, 1937. Abigail caused his will and codicil to be probated and was appointed executrix thereof. George's estate was distributed to Abigail. The decree of distribution was recorded on December 21, 1937.

In the latter part of 1940 Abigail met E. Ross Simpson, called Ross. Abigail and Ross were married on February 7, 1945. Both prior to and after they married, they orally agreed to merge their entire estates by transferring title to substantially all their real and personal property to themselves as joint tenants. They did so shortly after they married.

On October 19, 1948 one of George's kindred commenced a proceeding in the superior court for the examination of Abigail, Ross, and William Crandall, an attorney, to perpetuate testimony. The application for the order of examination alleged the petitioner expected to be a party to an action against Abigail and Ross to determine his rights under a written contract to make mutual wills, entered into by Abigail and George; that by the written contract George and Abigail agreed they would execute mutual wills, each devise his or her entire estate to the other, and ‘the survivor shall bequeath and devise the entire combined estates' half to designated kindred of George and half to designated kindred of Abigail. In a proceeding in mandate to compel the superior court to order the witnesses to testify, a writ was granted by the Supreme Court. Brown v. Superior Court, 34 Cal.2d 559, 212 P.2d 878. After the writ issued, Abigail and Ross settled the controversy with George's kindred.

On September 4, 1953 plaintiffs commenced this action. They are a niece and her children, grandnephews and grandnieces of Abigail, excepting one grandnephew.2 They alleged they are named in the wills to receive half of the combined estates of George and Abigail; George and Abigail agreed orally or in writing that each would leave his or her property to the other and that upon the death of the survivor half of the combined property would go to certain named relatives of George and half to certain named relatives of Abigail; in performance of this agreement they executed mutual wills; George predeceased Abigail, who was the executrix of his will and inherited his property; all of Abigail's property has been transferred to Ross in joint tenancy without consideration and for the purpose of defrauding plaintiffs; at the time of the transfer Ross had full knowledge of the agreement between George and Abigail; Abigail has repudiated her obligations under the agreement with George and has breached that agreement. The answers put in issue all of the substantive allegations of the pleadings of plaintiffs except the execution of George's will, the distribution of his estate to Abigail, and the transfer of Abigail's property into joint tenancy. In addition to other defenses, the answers pleaded that if Abigail had entered into the alleged agreement with George she had done so under the undue influence of George and without understanding the legal effect of such agreement.

The court found that prior to the time the wills were made George and Abigail orally agreed to make mutual wills containing the provisions they did contain; the wills are a true memorandum of the original agreement; they were irrevocable after the death of one of them; the survivor could have, during his or her lifetime, the reasonable use and enjoyment of their combined estates; on the death of the survivor, they both desired the property to pass to the persons named in their mutual wills and not otherwise. Defendants challenge the sufficiency of the evidence to support these findings. While there appears to be merit in the contention, since the judgment must be reversed on other grounds it will not be necessary to decide the point. In general, other findings followed the allegations of the complaint. The judgment impressed a trust on all the property of Abigail and Ross for the benefit of plaintiffs. All parties have appealed.

The court in finding XI found: ‘At the time the oral agreement to make mutual wills was made and during the negotiations leading to the same, and at the time the wills and codicils were executed and during the drafting thereof, Abigail and George were each represented and fully and independently advised by Ralph E. Wallace and William M. Crandall, attorneys at law. Said mutual wills and codicils were freely and voluntarily executed in accord with the formalities required by law by both Abigail and George, in each other's presence and with full knowledge and understanding of the contents and consequences thereof. At said times, Abigail was not in any respect imposed upon’; and in finding XVI, that Abigail's ‘conduct in offering George's will for probate and in accepting benefits thereunder was free, voluntary and with full knowledge and understanding of the terms of said agreement, wills and codicils, and was not under any undue influence, mistake or fraud. Abigail elected to take under George's will and to abide by the terms of their agreement and after George's death ratified and affirmed the same.’ Defendants challenge these findings and assert they are not only without support in the evidence but are contrary to the uncontradicted evidence. We agree. Our conclusion requires an extended statement of the evidence bearing on the question.

Three persons testified to conversations which took place during the drafting and execution of the wills: Mr. Wallace and Mr. Crandall of Wallace & Crandall, a former firm of attorneys at law, and Abigail.

Wallace testified: he prepared the wills; prior to and at the time the wills were executed, Wallace & Crandall were George's attorneys; he had known George since about 1926; beginning early in 1930, he had been employed by George several times in legal matters and his professional relations with George ‘extended over a period of several years'; he was employed by George to prepare his will of July 21, 1936; prior to the discussions with reference to the will, he had not acted in any legal matters for Abigail; Abigail had been in his office with George but not in his private office, she had remained in the reception room; the first professional contact he had with Abigail was in connection with the preparation of her will of July 21, 1936; in all consultations he had with Abigail in connection with the preparation of her will, George was present; the first conference took place a week or two before July 21, 1936, in his office; there were present George, Abigail, and himself; George opened the conversation by saying he wanted him (Wallace) to prepare wills for them; George gave him a memorandum of the legatees on both sides of the family; George told him they had agreed ‘on a general plan’; George said they thought there should be no division of their property for distribution outside of the couple, that the survivor should have the money and property and the use of it for the life of the survivor, and that at the death of the survivor they wanted it to go to the designated heirs on ‘this memorandum’; he asked them if they wanted a noncontest clause and George said, ‘Make it tight’; George brought up the subject of advances to legatees.

After the first conference Wallace assembled notes ‘in the general scheme of a will rather than a finished document.’ A second conference was then held. Wallace testified that only George, Abigail, and he were present; a trust arrangement for Mrs. Ellis, Abigail's sister, was discussed; George said ‘he had no confidence in her ability to handle money, and that was the reason for the trust arrangement’; the provision with respect to lapsed legacies was discussed; he ‘believes' he told them the wills could be changed by mutual consent during the lifetime of both of them, and could be changed by the survivor after the death of one of them only as to the appointment of executors or executrixes; he pointed out to them that it was binding and conclusive on the survivor following the death of the first of them; he asked them if that was what they wanted and they said it was; ‘The Court: Do you remember who first used the term of ‘mutual wills'?3 Did one of them bring up that subject, or did you advise a mutual will on the basis of the information they gave you? The Witness: As to the use of that word, it would be difficult for me to answer. Possibly in the course of the conversation I asked them if they meant a joint and mutual will, or something to that effect. It might have arisen that way. At any rate, it was after—I believe your question, your Honor was directed to the initial thought? The Court: Yes. The Witness: I don't know that I can answer that directly, but the minute it was suggested, whether they did it or whether I did it, they took it up, and that was what they wanted. The use of those words I do not remember’; in one of the conversations George told him ‘they carried their property separately, that he had his property in his name, he had part of the property in his name and she had part of it in hers, and he carried the so-called ‘cats and dogs' and so-called troublesome property, while she carried the ‘blue chips.”

On the day the wills were executed George and Abigail were present at all times; Wallace gave George a copy of his will and Abigail a copy of her will. He read through the one he was reading from and asked them to follow him, and if there was any question they wanted to ask or anything they wanted to suggest to interrupt him; and they were gone through that way completely. Wallace testified he did not believe he read both wills to them. It was stipulated the wills were duly executed. They were witnessed by Wallace and his secretary. When asked whether George or Abigail executed his or her will first, Wallace replied: ‘A. I rather think Mr. Brown did. Q. But you are not too certain? A. Well, I am as certain as I can be after 20 years.’ Wallace had no notes or memoranda with which to refresh his memory as to what occurred at the conferences other than George's will. He testified: ‘There was not a signed writing, of my knowledge. There was a memorandum, however, brought in my them initially setting forth the names of the beneficiaries on each side of the family’; as far as he knew, Abigail did not consult with Crandall at the time her will was being drafted; and as far as he knew, she did not consult with any other attorney.

Wallace also testified: ‘Q. Now, as I understand your testimony, there are two things that were said during the course of the conversations that you had with Mr. and Mrs. Brown, up to and including the time when they executed their wills, that you remember in your memory as specific statements that were made by one or the other of these parties, Mr. and Mrs. Brown; one was the statement by Mr. Brown when you were discussing the matter of a no-contest clause, and in which he used the words, ‘Make it tight’? A. That's right. Q. Another was the statement by Mr. Brown in the course of the discussions to the effect—and I understand these are the words he used—that he had the ‘cats and dogs,’ referring to the properties which stood in his name, and that Mrs. Brown had the ‘blue chips'; is that correct? A. That is right. I believe he used those two expressions, ‘cats and dogs' and ‘blue chips.” He also remembered that each party declared that the will he or she executed was his or her will and requested the witnesses to sign. Wallace testified he was alone with George and Abigail during all conversations with respect to the wills except during the formalities of executing them.

The codicils were prepared by Crandall. They were executed on October 27, 1936. Wallace, Crandall, George, and Abigail were present at the time. They were witnessed by Wallace and Crandall. The only thing Wallace could recall with respect to their execution was that he asked Abigail if she was a member of P.E.O., and she said she was.

Crandall testified: he knew George since prior to March 1, 1930; the firm of Wallace & Crandall handled ‘very many matters' for George; prior to the death of George he did not personally handle any legal matters for Abigail; he was present at all conferences with George and Abigail; he and Wallace were consulted jointly with respect to the drawing of the wills; at the first conference George and Abigail stated they wanted to have their wills drawn and had come to them for that purpose, they wanted to will on the part of each of them to the survivor, but if the other spouse did survive, the will of the surviving spouse was to specify the heirs of George would have half of the ‘remaining estate,’ and the heirs of Abigail would have the other half, naming the heirs they said were to be taken into account; he did not recall a memorandum; George stated with respect to their properties that the ‘blue chips' were in Abigail's name and the ‘cats and dogs' were in his name; there was a second conference for the purpose of having them read over the wills and execute them; Wallace, Miss Kuhn, Wallace's secretary, George, and Abigail were present at the time the wills of George and Abigail were executed; he does not remember much about that conference. He testified: ‘My recollection is that they each of them read over the wills that had been prepared for each one respectively. I believe Mr. Wallace went over paragraph by paragraph reading at least one of the wills, reading the will to them, whereupon they indicated their readiness to sign, stated that they were ready to sign, and did sign, and asked the witnesses to witness their signatures, and they declared it then to be their last wills and testaments, respectively’; he had no recollection of a conference at which a draft of the wills was prepared.

Crandall testified he prepared the codicils; there was one conference; Wallace, George, Abigail, and himself were present; the substance of the conversation with respect to the codicils was that there was a changed condition regarding Mrs. Ellis, Abigail's sister;4 he told them the change could be made by a codicil; the codicils were signed the same day; at the time they were executed he, Wallace, George, and Abigail were present; he does not know whether Abigail read her codicil before it was executed; he did not read it to her; after George died, Abigail employed him to act as attorney for her as executrix of George's will.

Crandall testified further: in the consultations with George and Abigail, Abigail remained silent for the most part; she ‘was not a talking person,’ George was; at the time of the conferences regarding the wills and codicils he observed Abigail's physical condition in a general way; she did not appear to be under any compulsion or fear; he did not notice any particular infirmity and he did not recall anything being said about any recent illness; Abigail appeared to be some years younger than George at the time.

Abigail testified: at the time she married George in 1910 she had some trust deeds of a value of less than $10,000, some cash, and jewelry; George had interests in dry goods stores; she does not know their value; George worked for a salary from 1910 until 1921; his salary at the last was ‘maybe five or six’ thousand a year; after 1921 he just tended to his own affairs and was interested in trust deeds and real estate; from the time they married until George's death they kept their funds in separate bank accounts.

Abigail testified further: on the day she and George first talked to the lawyers about wills George had other business he wanted to do and they went together; they had not previously discussed the making of wills; they talked to Crandall about having a will; they did not know how to have it done and thought he could tell them the proper way; Crandall did the talking; Wallace came in and they talked together; Wallace and Crandall each had something to do with preparing ‘it’; she does not know just what part each one had; she does not know which one of them mentioned about mutual wills; ‘he tried to explain it to us'; George and she listened but did nothing about it that day; Crandall told them ‘about it, and that they would be worded the same, only one would be mine and one would be’ George's; she and George went home, thought about it, when it was convenient went down, and finally decided on having the mutual wills made; she remembers that a draft of a will was talked about; she does not recall that either George or she brought a memorandum; she is not able to tell anything else that was said at the conferences; she remembers when she and George signed the wills; she does not know where the will is now, and does not know what happened to it; she does not recall executing a codicil in October 1936.

Abigail also testified: on none of the occasions when she went to the office of Wallace & Crandall did she have any intention of making any contract with George with respect to her will, and she did not go there for that purpose; neither at the time she signed her will nor at the time she signed the codicil did she think she was making a contract with George with respect to her will; Wallace did not tell her she could not revoke her will after George's death; when she signed her will she ‘just thought, ‘Well, if it is what Mr. Brown wants, why, all right,’ and I knew that it would be all right if he did it, and I knew he would protect me by it'; she has never been trained in the law; she has been a housewife all her adult life.

Abigail testified further that when she went to the office of Wallace & Crandall after George's death to see about probating George's will, she talked to both Wallace and Crandall; neither of them told her she had made a contract with George by the two wills; neither of them at any time after George's death told her that by her will and George's will she had entered into a contract with George; after George died she did not obtain advice from any lawyer as to what rights she might or might not have by reason of George's death; in connection with the probate of George's will and the administration of his estate there were no discussions with either Wallace or Crandall as to any rights she might have; the first information she had that someone claimed rights under a contract which arose by the making of her will and George's will was when she was served with a subpoena in the matter of the application of Maurice C. Brown to perpetuate testimony.

We have canvassed the record and find no other evidence bearing on the question of the sufficiency of the evidence to sustain findings XI and XVI.

The determination of the question whether a finding of fact is supported by substantial evidence presents a question of law. Burtis v. Universal Pictures Co., Inc., 40 Cal.2d 823, 831, 256 P.2d 933. It is our duty to analyze the record for the purpose of determining whether there is any substantial evidence which reasonably supports findings XI and XVI. Potter v. Pacific Coast Lumber Co., 37 Cal.2d 592, 598, 234 P.2d 16. On such review the conclusion is inescapable that the record does not justify those findings and that the trial court erred as a matter of law in adjudicating this issue.

We must distinguish between the effect of the will and the rights and duties created by the alleged agreement. The alleged agreement, if made, is irrevocable except by mutual consent of both parties to it and the will is always revocable so long as the testator is alive and sui juris. Prob.Code, § 23. Plaintiffs' rights, if any, flow primarily from the alleged agreement; and the ordinary requirements of contract law govern the validity and enforcement of the agreement.

An apparent consent is not real or free when obtained through undue influence. Civ.Code, § 1567. In such case the injured party may avoid the contract by rescission or defend against its enforcement. 12 Cal.Jur.2d 258, § 58.

Civil Code, section 158, reads:

‘Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying the confidential relations with each other, as defined by the Title on Trusts.’

Civil Code, section 2235, in the title on trusts, reads:

‘All transactions between a trustee and his beneficiary during the existence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence.’

‘In passing upon that statute [section 2235] our Supreme Court, in White v. Warren, 120 Cal. 322, 49 P. 129, 52 P. 723, said: ‘As applied to the relations of husband and wife, the aforesaid section 2235 may be read as follows: ‘All transactions between the husband and wife, by which one obtains any advantage from the other, are presumed to be entered into by the latter without consideration, and under undue influence.’'' Gaines v. California Trust Co., 48 Cal.App.2d 709, 714, 121 P.2d 28, 30.

Bradner v. Vasquez, 43 Cal.2d 147, at pages 151, 152, 272 P.2d 11, at page 13, says:

‘It is plaintiff's contention that the advantage gained by the fiduciary must be an unfair advantage before the presumptions of section 2235 are properly in the case. We find no language in this section which imposes such an additional requirement. * * *

‘When a fiduciary enters into a transaction with a beneficiary whereby the fiduciary's position is improved, or he obtains a favorable opportunity, or where he otherwise gains, benefits, or profits, it may fairly be said that an advantage has been obtained. To declare that the advantage obtained must be shown to be unfair, unjust, or inequitable before the presumptions arise would result in the imposition of a condition which is not required by section 2235.’

In Matassa v. Matassa, 87 Cal.App.2d 206, at pages 214, 220, 196 P.2d 599, at page 604, the court stated:

“It is established law that confidential relations are presumed to exist between husband and wife; if the husband obtains any advantage over his wife he must stand unimpeached of any abuse of the confidence presumptively reposed in him, and failing in this he bears the burden of showing that the transaction was fair and just and fully understood by the party from whom the advantage was obtained. In re Estate of Cover, 188 Cal. 133, 143, 204 P. 583; Locke Paddon v. Locke Paddon, 194 Cal. 73, 80, 227 P. 715. The policy of the law in respect to such transactions can best be enunciated by quoting from In re Estate of Cover, supra, 188 Cal. at page 144, 204 P. [583] at page 588: ‘In short, a husband, by reason of the marital relation, is bound in his dealings with his wife to the highest and best of good faith and as a consequence is obligated in such dealings not to obtain and retain any advantage over her resulting from concealment or adverse pressure, and he must, if he would avoid the presumption of undue influence emanating from the procurement of any advantage over her, make full and fair disclosure to her of all that she should know for her benefit and protection concerning the nature and effect of the transaction, or else he must deal with her at arm's length and as he would with a stranger, all the while giving her the opportunity of independent advice as to her rights in the premises.’ See also McKay v. McKay, 184 Cal. 742, 747, 195 P. 385, where it was held that this presumption of undue influence in transactions between husband and wife prevails over other presumptions.' * * *

‘Keeping in mind that the instant contract is a postnuptial agreement between husband and wife, not made in contemplation of a divorce, the rule enunciated by this court in Re Estate of Hurley, 28 Cal.App.2d 584, 588–589, 83 P.2d 61, 63, appears particularly applicable to the situation under consideration, to-wit:

“It is not disputed that husband and wife may be appropriate agreement waive their respective inheritable rights in the estate of the other. It is equally well established, however, that courts will not construe a property settlement between husband and wife as depriving the survivor of inheritance or other rights growing out of the marital relation, except where there is a clear and unmistakable intention to barter away such rights.”

The wife's consent to an agreement with her husband to make irrevocable mutual wills must be an actual one, based on an intelligent knowledge of his property and the effect of her consent, as distinguished from one merely formal. State ex rel. Minnesota Loan & Trust Co. v. Probate Court, 129 Minn. 442, 448, 152 N.W. 845, 846, L.R.A.1915E, 815.

In Andrew v. Andrew, 51 Cal.App.2d 451, 125 P.2d 47, the trial court set aside a property settlement agreement. Affirming, the court stated (51 Cal.App.2d at pages 454, 455, 125 P.2d at page 48):

‘With interests so varied the defendant suggested to the plaintiff that they should make a property settlement. She consented. He employed his present attorney, Mr. Hjelm, to reduce the contract to writing. The latter prepared a written instrument. The plaintiff and defendant went to his office and plaintiff testified they both signed it. She testified she had no advice except what her husband said and what Mr. Hjelm said. She also testified she did not read said written instrument, and never read it nor knew its contents until the time she commenced this action. * * *

‘* * * Before it was executed it is not even claimed the plaintiff had had the benefit of independent legal advice. Ordinarily her grantee under such circumstances could not retain the benefits under said instrument. 9 Cal.Jur. 230. Being a purported contract between husband and wife, it was between those standing in a confidential relation and was presumed to be fraudulent.’

In Gregory v. Gregory, 92 Cal.App.2d 343, 349, 206 P.2d 1122, it was held that in negotiations between husband and wife for settlement of property matters, both parties should at all times be represented by counsel, and while one attorney may serve both parties in such negotiations, he should make sure that each party is fully advised as to his or her legal rights, including the right to independent counsel.

Auclair v. Auclair, 72 Cal.App.2d 791, at page 801, 165 P.2d 527, at page 532, says:

‘The least overreaching or misrepresentation by a husband through which he gains the property of his wife is fraudulent and will justify an action to avoid a settlement. [Citation.] That confidential relation exists so long as the parties are husband and wife. [Citation.] A husband is bound in his dealings with his wife to the highest and best of good faith and if he would avoid the presumption of undue influence emanating from the procurement of any advantage over the wife, he should make a full and fair disclosure to her of all she should know for the protection of her interest, giving her the opportunity of independent advice.’ (Emphasis added.) Also see Cox v. Schnerr, 172 Cal. 371, 378–379, 156 P. 509; Nobles v. Hutton, 7 Cal.App. 14, 23, 93 P. 289; Burrows v. Burrows, 136 Cal.App. 323, 329, 28 P.2d 1072; Khoury v. Barham, 85 Cal.App.2d 202, 212, 192 P.2d 823; Sparks v. Sparks, 101 Cal.App.2d 129, 135, 225 P.2d 238.

Apropos were the words of the court in Peyton v. William C. Peyton Corp., 23 Del.Ch. 321, 7 A.2d 737, 123 A.L.R. 1482. The husband executed a will. The wife, in writing, consented to the execution of her husband's will and approved the disposition of his estate as therein provided. The will and the consent which was attached thereto were drawn by her husband's attorney. The will and the consent were presented to her by an office associate of her husband's firm of lawyers. The husband was not present when the wife signed the consent. Holding that the consent was voidable at the wife's election, the court stated (7 A.2d 746, 750, 753):

‘Confidential relations are presumed to exist between husband and wife. The most dominant influence of all relations is that of husband over wife; and the relation is confidential to the highest degree. There are exceptional cases, of course, where the woman is the more masterful; but, generally speaking, the trust of the wife is so absolute and her dependence so entire, while the dominion of the husband is so complete and his influence so controlling, that equity scrutinizes severely all transactions between them; for, in the proportion to the affection and trust is the probability of the wife to be subject to the husband's influence, and in the same proportion is the vigilance of the court aroused. * * * So, the principle is well established that a person standing in a confidential relation towards another may not retain benefits conferred by his principal in a transaction as to which competent independent advice is considered necessary, except upon a satisfactory showing that the principal had such advice in conferring the benefits. Wherever independent counsel would be of real assistance to the principal in deciding whether to enter into the transaction with his fiduciary, it is the latter's duty to advise his principal to seek such counsel; and where in the circumstances of the case independent advice is deemed to be indispensable, it is not enough that the fiduciary has urged his principal to obtain such advice; the transaction will be voidable, at the election of the principal, if independent advice was not, in fact, had. The equitable principle has its root in the fact that the parties are not regarded as being on an equal footing; and the court cannot be sure that the principal acted freely and in such way that he ought to be bound irrevocably, unless it be shown satisfactorily that he actually had the benefit of unbiased, competent counsel, and fully understood the matter of the proposed transaction. Application of the principle is not restricted to cases where, by evil design or contrivance to injure another, a benefit has been gained by a fiduciary at the expense of his principal; for even though a fiduciary has no purpose or intention to take an unfair advantage, equity will not lend its aid to the enforcement of the transaction and the fiduciary will not be permitted to retain advantage acquired as a consequence of it, if the transaction results in inequality and injustice. The purpose of the rule is not so much to protect the cestui against the consequences of undue influence as it is to safeguard him against the results of his own voluntary acts induced by the confidential relation between him and his fiduciary the effect of which with respect to his own interests he may not fully comprehend. * * *

‘* * * It does not appear, indeed it is not claimed, that Mrs. Peyton ever had legal advice from any one, competent or incompetent, impartial or biased, or that she ever was urged by her husband, or that he ever offered to obtain for her, such advice; but on behalf of the executors and trustees it is urged that Mrs. Peyton sought no explanation of the documents or advice in the transaction from Mr. Chambers when he took the papers to her, although he would have explained them to her had he been requested; or that she could have consulted her own counsel. This argument is without merit. It ignores the duty cast upon the fiduciary at least to advise his principal to seek independent counsel; and advice from a law associate of Mr. Coulson could hardly be characterized as impartial. * * *

‘* * * The equitable principle invoked as applicable to the circumstances of the transaction under scrutiny does not require a showing of design founded in evil purpose.’

It is patent that George obtained an advantage by the execution of Abigail's will. The power to control the devolution of one's property has value and importance as a resource. Abigail surrendered her power to dispose of her estate as she wished. George and Abigail had no children. She parted with her entire interest in the combined estates, except for a life estate, extending beyond George's life. The court found that between George's death and her death she has only the reasonable use and enjoyment of the combined estates. She retained a mere life estate with remainder to plaintiffs, who concede they stand in the shoes of George. She parted with the power to consume to the benefit and profit of plaintiffs. The court found that all property acquired during their marriage of 26 years was community property. In the absence of the wills, should George die first, all the community interest of George would have gone to Abigail.5 Prob.Code, § 201. Aside from any agreement, Abigail had the power to dispose of half of the community property to parties of her own choice. Prob.Code, § 201. Hence, when Abigail made the oral agreement binding herself to leave her estate to George and in the event of his predeceasing her, to the other named beneficiaries, she was deprived of this power and George benefited. He obtained a ‘favorable opportunity’ and an advantage for himself. As stated in Bradner v. Vasquez, 43 Cal.2d 147, 152, 272 P.2d 11, section 2235 does not require that the advantage to the husband be an unfair advantage. The transaction is presumed to have been ‘without sufficient consideration, and under undue influence.’ Civ.Code, § 2235.

Of course the presumption of undue influence is rebuttable and may be overcome by proof of full and fair disclosure of all that the wife should know for her benefit and protection concerning the nature and effect of the transaction. In re Estate of Cover, 188 Cal. 133, 204 P. 583. The burden was on plaintiffs of overcoming the presumption. As we shall see, they did not sustain the burden.

The court found: ‘At all times during the marriage to George, Abigail had complete trust, faith and confidence in him and at all times during such marriage she signed such papers and documents as George requested her to sign.’ (Emphasis added.)

In view of this finding and the uncontradicted evidence, it must be held that the presumption was not overcome. There was no evidence that Abigail ever discussed the alleged agreement with anyone other than George and his attorneys. George took her to his lawyers. He was present at all times during the preparation and execution of the wills. He did the talking. It is uncontradicted, indeed it is conceded, that Abigail had no legal advice from anyone other than from George's attorneys. No one informed her she was entitled to independent counsel and independent advice. So far as the record shows, she had no opportunity to seek independent counsel and advice. She relied entirely on George and his attorneys. She executed the will in ignorance of her rights and without any advice as to its effect. There is a complete absence of any evidence that anyone advised her of the comparative values of George's and her estates or of the nature of their property, whether community or separate. No one told her she was entering into a contract for the express benefit of plaintiffs. No one told her that if George died first she would be without power to convey or transfer any of the property, or that she would merely have a life estate, or that she would be without power to mortgage more than her life interest. No one informed Abigail that if she survived George she would have only the reasonable use of the combined estates during her lifetime and could not make gifts. No one explained to her that futureacquired property would be within the life estate-remainderman status; that if George died first and her estate was increased by gifts, inheritance, or as a result of her own efforts, she would still be bound by the alleged agreement. Homestead rights were not explained to her and she was not told that she might lose such rights if George died first. See In re Estate of Sloan, 179 Cal. 393, 396, 177 P. 150; Prob.Code, §§ 660, 661. The mere statement of Wallace to her that she could not change her will was wholly inadequate to convey to her, a woman unversed in the law, the full legal effect of making the will. The statement did not inform her of her rights. It is relevant to note that there is no statement in either will that the maker cannot change the will if he or she is the survivor.

There was evidence that prior to any controversy with George's relatives or with plaintiffs and prior to her marriage to Ross, Abigail was under the belief that George intended she should be free to remarry. No one told her the effect of an agreement to make irrevocable mutual wills should George die first and should she remarry. Prob.Code, § 70.6 No one advised her that if she survived George and remarried she could not give or will any property to her new spouse and that her obligations to him would be subordinated to the provisions of the will in favor of George's relatives and her distant relatives.

There was no evidence that Abigail had any more information or knowledge with respect to her rights at the time she executed the codicil than she had at the time she executed the will. There was only one conference at that time. George, Abigail, Wallace, and Crandall were present. The only subject discussed was a change with respect to Mrs. Ellis, Abigail's sister. All Wallace remembered about that meeting was that he asked Abigail if she was a member of P.E.O., that Abigail said yes, and that he witnessed the codicil. Neither Wallace nor Crandall testified that anything was said with respect to Abigail's rights or that the alleged agreement was even mentioned.

Plaintiffs contend Abigail may not assert undue influence by George after offering his will for probate and accepting benefits thereunder, relying on Civil Code, section 1589. They say that by doing so, she ratified the alleged agreement and is estopped from asserting undue influence. The point is without merit.

Abigail employed the law firm of Wallace & Crandall to act as her attorneys in the probate of George's will and the administration of his estate. She had no other legal advice. There is no evidence that either Wallace or Crandall, or anyone else, advised Abigail of the legal effect of probating George's will and accepting benefits thereunder, or of any of her legal rights arising from George's death. Abigail testified that neither Crandall nor Wallace told her, in connection with the probate of George's will or the administration of his estate, that by reason of an oral agreement she had made with George or because she and George had executed mutual wills she now had certain obligations which she would confirm by accepting benefits under George's will. Crandall and Wallace were plaintiffs' witnesses and they were available to contradict Abigail's testimony. They did not contradict it and an inference arises that their testimony would have confirmed the testimony of Abigail. Joseph v. Drew, 36 Cal.2d 575, 579, 225 P.2d 504; Shehtanian v. Kenny, 156 Cal.App.2d 576, 580, 581, 319 P.2d 699.

Neither Wallace nor Crandall testified to any discussion with Abigail in which they told her that by reason of any ‘oral agreement’ with George or because of the execution of ‘mutual wills' by herself and George she now had certain obligations which she would confirm by accepting benefits under George's will; they did not testify to any discussion of any kind which dealt with an agreement with George or the ‘mutual wills' or either of them. Abigail on the other hand testified positively that neither Wallace nor Crandall had any discussion with her as to any rights or obligations which she might have. Plaintiffs say the court was not compelled to believe Abigail. Assuming it did not, disbelief of her testimony does not supply affirmative evidence that she had any advice as to her rights. In re Estate of Bould, 135 Cal.App.2d 260, 264, 287 P.2d 8, 289 P.2d 15.

A confirmation necessarily supposes a knowledge of the thing ratified, the term implying a deliberate act intended to renew and ratify a transaction known to be voidable. 15 C.J.S. Confirmation, p. 826.

There can be no estoppel where the party against whom it is invoked did not know the full truth of the facts to which his conduct related; and such knowledge must be actual, not merely presumptive. 18 Cal.Jur.2d 409, § 9. In re Estate of Cover, 188 Cal. 133, 204 P. 583, is in point. The court stated (188 Cal. at page 146, 204 P. at page 589):

‘It is argued on behalf of the appellant, in effect, that even though the doctrine of laches may not be formally pleaded in avoidance of the defense of fraud, nevertheless the widow, having accepted and retained, without protest or repudiation, the benefits of the agreement during a period of several years after its making, is estopped from defending against its operation. There might perhaps be much force in this contention if it had been shown in evidence that the widow had discovered, at any time subsequent to the making of the agreement and prior to the death of the deceased, the fraud alleged to have been practiced upon her by the deceased. But the pleadings, the evidence and the supported findings show, in substance, that the widow was ignorant of the scope and effect of the agreement, not only at the time of its making, but at all times thereafter until shortly before she petitioned for letters of administration, and that not until then did she have occasion to doubt the bona fides of the deceased. Accepting the agreement in the belief that the deceased was dealing honestly with her, she was justified in resting in that belief, and was not called upon then or thereafter to make independent inquiry as to his good faith. [Citation.] Accepting and retaining the benefit of the agreement, as the evidence shows she did, in continuing ignorance of the effect thereof upon her right to succeed to a portion of the estate of the deceased in the event of his dying intestate, did not operate as an estoppel, for to constitute an estoppel it must be made to appear that she acted with full knowledge of all the material facts and circumstances and with full knowledge of her rights in the premises.’ Also see In re Estate of Poole, 156 Cal.App.2d 768, 775, 320 P.2d 62; Williams v. Sechler, 127 Kan. 314, 273 P. 447, 448.

‘Contracts to make wills are probably less adequately understood by the parties to them than any other contracts known to the law. * * *

‘Where legal advice is possible it is highly important that a person about to agree to devise or bequeath his property be fully informed of the probable consequences of such a contract. He should also have pointed out to him the possibility that a future change of circumstances might make such a contract undesirable. A party to such a contract should be made to understand clearly that the law does not permit a man to have his cake and eat it too. If he does enter into such a contract he should do so with a knowledge of the legal significance which the law will attach to his act, and with a realization that a part of that legal significance might be the prevention of his making some future use or disposition of his property which might become highly desirable to him. That parties have often failed to consider these matters is demonstrated by the frequency with which they have tried to get from under the effects of the contracts once they have entered into them. To accomplish this result various means have been attempted, including inter vivos gifts, inter vivos sales, transfers with a reservation of a life estate, various types of trust arrangements, and others. Some of these schemes have achieved the desired purpose and some of them have not. It would seem that most of these unfortunate experiences could be avoided if the parties realized in advance the nature of the obligation the promisor assumed toward his promisee.’ Sparks, Contracts to Make Wills, 1956, N.Y.Univ. Press, 50, 52.

The evidence is without conflict that Abigail did not at any time have full knowledge and understanding of the consequences of the alleged oral agreement or of the will she executed. She did not have an intelligent, knowledgeable choice. Assuming, without deciding, that there was an oral agreement not only to make mutual wills but also an agreement that they would be irrevocable—an offer and an acceptance, a bargain—plaintiffs did not sustain the burden resting on them of overcoming the presumption of undue influence. There was no evidence rebutting the presumption. Consequently, as defendants contend, findings XI and XVI not only have no scintilla of evidence or inference to support them but are contrary to the uncontradicted evidence. No finding of fact is binding on a reviewing court if it is not supported by substantial evidence. Golding v. R. K. O. Pictures, Inc., 35 Cal.2d 690, 699, 221 P.2d 95.

Since findings XI and XVI are vital to the judgment, it must be reversed. As previously stated, defendants challenge the sufficiency of the evidence to sustain the findings that George and Abigail entered into an oral agreement to make irrevocable mutual wills, that the wills are a true memorandum of the original agreement, and that they were irrevocable after the death of one of them. Defendants also assert various other findings are unsupported; that certain findings are inconsistent; that the alleged oral agreement is harsh, oppressive, unjust, and inequitable; that it is void against public policy; that the defenses of the statute of frauds, laches, and the statute of limitations were established; and that plaintiffs were only incidental beneficiaries and, as such, not entitled to enforce the alleged oral agreement. In view of our conclusion that findings XI and XVI, which are essential to the judgment, are unsupported by the evidence, it is unnecessary to discuss other points or to consider plaintiffs' appeal.



1.  Abigail's will was lost or destroyed. The pertinent parts of Abigail's will, as reconstructed by the attorney who prepared it, read: ‘Last Will and Testament of Abigail Parkhurst Brown ‘I, Abigail Parkhurst Brown, being of sound and deposing mind and memory and not acting under fraud, duress or undue influence of any person, do make, publish and declare this my Last Will and Testament, and I do hereby further declare that this Last Will and Testament is made in consideration of a mutual Will on the part of my husband, George Stanley Brown, of even date herewith and in pursuance to an agreement between myself and my said husband, George Stanley Brown, for the making of these mutual Wills on the part of each of us, and it is understood that should I be the survivor as between myself and my said husband and should I deem it advisable to appoint other executors in the place of those named herein, I reserve the right to do so and my said husband shall have the like privilege so long as one of the co-executors is appointed from my family and one from the family of my said husband, George Stanley Brown, as follows, to-wit: ‘First: [revocation clause] ‘Second: [payment of debts, etc.] ‘Third: In the event my said husband, George Stanley Brown, shall survive me, I hereby give, devise and bequeath to my husband, George Stanley Brown, all of my estate, real, personal and mixed, whatsoever nature and kind and wheresoever situated. ‘Fourth: If my husband, George Stanley Brown, be deceased at the time of my demise then and in that event I hereby give, devise and bequeath my entire estate including any and all property or estate that I may have received from my said husband, George Stanley Brown, one-half (1/2) to my kindred and one-half (1/2) to the kindred of my said husband, as hereinafter directed. ‘Fifth’ to ‘Ninth’ inclusive: [bequests and devises to kindred of George] ‘Tenth: [provision re lapsed legacies] ‘Eleventh’ to ‘Fourteenth’ inclusive: [bequests and devises to kindred of Abigail] * * *.'

2.  One grandnephew refused to be a plaintiff and is joined as a defendant.

3.  There had been no testimony by Wallace that anyone had used the term ‘mutual wills.’

4.  Mrs. Ellis has since died and under the the terms of the wills plaintiffs are bequeathed and devised her interest in the estate on the death of Abigail.

5.  George was 72 at the time the wills were executed. He died eight months and a few days later.

6.  Probate Code, section 70: ‘If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received.’

VALLEÉ, Justice.

SHINN, P. J., and WOOD, J., concur. Hearing granted; DOOLING, J. pro tem., participating in place of TRAYNOR, J.