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District Court of Appeal, Third District, California.

IN RE: ESTATE of Ulrich A. FRITSCHI, Deceased. Rose Marie Fritschi, as Guardian etc., Contestant and Respondent, American Trust Company et al., Proponents, Marie Sylvera Teed, Appellant.

Civ. 10235.

Decided: January 31, 1963

McAllister & Johnson, Sacramento, for appellant. Dwyer, King & Mering, Sacramento, for proponent. Morton L. Friedman, Sacramento, for respondents.

This is an appeal from an order denying probate of the will of Ulrich A. Fritschi, deceased, based upon two special jury verdicts, one finding that the decedent lacked testamentary capacity, and the other finding that the purported will was the result of undue influence exerted by one Marie Teed. We have determined that the evidence does not support either verdict and that proponents' motion for entry of an order admitting the will to probate notwithstanding the verdicts ought to have been granted.

Decedent was a physician specializing in treatment of diseases and defects of the eye. He established a practice in Sacramento in 1947 and soon became recognized as highly competent and skilled in his speciality. His practice increased rapidly as instanced by his 1958 income tax return showing an adjusted gross income in excess of $40,000. For the last several years of his practice he was associated with Dr. Kohl, whom he took into partnership at a time when he had already built a practice so large as to necessitate professional aid. About the 1st of February 1959 he entered the hospital upon what turned out to be a terminal illness. He died April 5th from cancer of the stomach with massive involvement of the liver. An exploratory operation performed April 1 disclosed the cancerous and inoperable condition. In 1934 he married Rose Marie Fritschi and began the collegiate study of medicine which he completed in 1944. He went into the armed forces and remained there until coming to Sacramento to establish his private practice. Two male children were born of the marriage and at the time of his death they were 12 and 14 years of age. The Fritschis enjoyed a normal and harmonious marital and family relationship until about March of 1956 when discord arose between the spouses. Mrs. Fritschi sought counsel with Dr. Young, a psychiatrist, a part of whose practice was described as that of marriage counselor. For the following year and into August of 1957 Dr. Young was consulted by all four members of the family. Relations worsened, however, until in July of 1957 Dr. Fritschi left his home and thereafter lived separate and apart from his wife and sons. Mrs. Fritschi filed an action for divorce in August 1957 and an interlocutory decree dissolving the marriage was entered April 23, 1958. A property settlement was arrived at and embodied in the decree. Considerable time was consumed in negotiations. Ultimately, the case was tried. Dr. Fritschi's death occurred before the lapse of the interlocutory year. The interlocutory decree awarded the custody of the two sons to their mother and directed the father to pay to her for their support the sum of $175 per month for each child.

The contested will referred to the interlocutory decree and the provisions for the support of the children and declared the testator's property to be separate. It recited that there was in force a policy of insurance on the testator's life in the principal amount of $100,000 with his estate named as beneficiary. The will established a trust in the proceeds of this policy, naming proponent American Trust Company as trustee and directing payments from the proceeds of the life insurance for the further support of his sons and declaring that it was not intended the trust proceeds paid over should in any way be considered as performance of the obligations of the testator under the divorce decree but should be in addition thereto. Marie Teed was named as residuary legatee. Due to the future incidence of debt payment, taxes and other charges, the estimate as to the amount that would ultimately be available for distribution as residue was in dispute during the trial. The estimates ranged from around $30,000 to sums considerably in excess of that amount. No provision by will was made for Mrs. Fritschi, and she does not contest in her individual capacity.

It appears without dispute, being often referred to and explored in the evidence presented by both sides, that there had been a prior will executed on the 12th of February 1959; that Dr. Fritschi about February 20 called his attorney, Mr. Dwyer, and told him he wanted another will prepared making changes in provisions of the existing will; that the contested will was prepared in response thereto and formalities of execution were all attended to when Mr. Dwyer brought the document to the hospital for execution by the testator on March 31.

The testimony relied upon to invalidate the will may be summarized as follows: Marie Teed, residuary legatee under the will, went to work for the testator as a receptionist in 1953. During the latter part of 1955 she commenced intimate relations with Dr. Fritschi. Prior thereto his family life was described as happy and compatible. In August 1957 Mrs. Fritschi filed for divorce as hereinbefore recited, the proceedings ending in the interlocutory decree with a property settlement as above stated. In September 1958 Dr. Fritschi first consulted Dr. Fred Schroeder for medical treatment of severe abdominal pain. Dr. Schroeder testified that at that time he was quite emotionally disturbed, was deeply concerned about the children, and had a fixed conviction that the older boy should be taken away from his existing environment and sent to a school where he would receive close disciplinary supervision. It appears that the son was placed in a school selected, at least in part, by Dr. Fritschi. Dr. Schroeder said the situation was one where it appeared the parents could have no meeting of the minds on anything and had arrived at an impasse; that the emotional situation had reacted unfavorably on the health of Dr. Fritschi. He thought Dr. Fritschi exaggerated the situation as to his sons, but could not dissuade him from his views. He described Dr. Fritschi's situation in this respect as ‘a paranoia of sorts,’ it being impossible for him to handle the situation without outside help. Dr. Schroeder said this continued through his hospitalization in reference to his children; that Dr. Fritschi was very sick when last admitted to the hospital and evinced little desire to see his children, seeing them only once or twice during his terminal illness. He described his paranoid attitude as being an unusual ‘fact or little part of somebody's total emotional picture in which area they can make no sense. I mean the other 99% of them may be as sound as a Vermont Dollar * * * but the one penny part of the thing is square, oblong, but it doesn't belong with the rest * * *.’ Dr. Schroeder characterized this as an imbalance, but would not use the term ‘demented,’ saying that in this small phase of dealing with his children he thought it was difficult for Dr. Fritschi to see ‘right and wrong, good and bad, and all that sort of thing.’ Dr. Schroeder saw Dr. Fritschi on the day the contested will was executed and said that he had had a sleepless night, talking to the nurses off and on all night; that he had received papaverine at mid-night; some nembutal at 2:30 in the morning, and again at 6:30 had received pantopan. He said that drugs had been used in an attempt to obtain various results, such as anticoagulation condition of the blood and to obtain ease from pain, and that altogether some 24 different drugs had been tried from time to time, because, as he put it, ‘Just the fact that we juggled around a lot and there was considerable juggling meant that none of them were completely satisfactory in all spheres.’ He said Dr. Fritschi suffered great pain intermittently and required narcotics. He said that in some instances fairly high doses of drugs were used to achieve the results they needed from time to time; that Dr. Fritschi lost an immense amount of weight, weighing finally in the neighborhood of 100 pounds, looked very ill; that tranquilizers were used; that the drugs he had been taking could not help but have some effect on his mind; would interfere in thought processes; would make a difference in his emotional response to people. The medical record showed that on March 22 and 23 he had walked about in the hall and on March 31 had had a ‘Fair day.’ He signed a consent to an exploratory laparotomy, that is, an exploration of the abdominal cavity through an abdominal incision. Various witnesses testified to physical changes and emotional changes which Dr. Fritschi went through during the period of his separation from his family to his death. It is a picture of steady worsening of his physical condition and of arrival at a state where persons who visited him shortly before the execution of the will found him very groggy, very sleepy, very tired and unresponsive to attempts to have conversation, all of which the witnesses said was sharply in contrast to his usual condition prior to his illness. One witness testified that he visited him around the 20th or 25th of March, at which time he found him extremely gray in color, breathing very rapidly with shallow breath and sleeping. On a shortly previous visit this witness described him as being irrational. Said the witness: ‘* * * By no means was he raving or anything but he was nowhere near his normal self as far as reactions to conversation.’ He said the doctor seemed to be withdrawing further within himself between each visit the witness made. There was a good deal of testimony along this line. Dr. Young, acting as a marriage counselor, stated from his study of Dr. Fritschi he believed him to have had paranoid tendencies but he was not paranoid. He concurred with Dr. Schroeder that the drugs the testator had been given would tend to cloud his thinking and make him groggy; that the combination of the drugs reacting together would further decrease his ability to think clearly. Dr. Young saw Dr. Fritschi on two occasions during his last illness and found he was very tired; that he drifted off in his thinking; that he was depressed and broke down and cried. He stated his personality had regressed into a childhood pattern. Dr. Kohl, who was practicing medicine in partnership with Dr. Fritschi, described a decided change in Dr. Fritschi's makeup in the latter month of his life and said that after his terminal hospitalization he grew progressively more sick, depressed, required more medicine and refused to discuss the business of the office with Dr. Kohl. He said he found Dr. Fritschi under the influence of sedation; that at times he would slump into his pillow during a conversation, appear fatigued and tired; that he was pale, his speech was slow; that he was in extreme pain; that the drugs affected his thinking; and that he was a very sick man. He said he was not able to talk to Dr. Fritschi about the partnership agreement and the partnership's situation in view of Dr. Fritschi's absence from the practice. He said this was because Dr. Fritschi was unable to talk and did not have the mental and physical condition to do so. Mrs. Fritschi saw Dr. Fritschi in the hospital during his terminal illness, and she described him as speaking with great effort, constantly dozing off, unable to carry on a conversation, and on one occasion called her by another person's name. She gave an opinion that he was on occasions extremely irrational and on others normal. She said that when she visited him on March 24 he was irrational and not capable of thinking clearly. She gave as her opinion, also, that he was irrational at the time of the execution of the will, basing her opinion upon her previous observations and upon the contents of the will itself.

Concerning the relationship between Dr. Fritschi and Marie Teed, the latter being accused in the contest of having unduly influenced the execution of the contested will, the following appears: She had worked for him for several years as a receptionist, gradually taking on additional duties, such as bookkeeping; the two became intimate a considerable time before the breakup of the Fritschi marriage. During this period she also was married. She obtained a divorce from her husband which became final a considerable period of time before Dr. Fritschi's death. It appears without dispute that the two intended to marry as soon as Dr. Fritschi's divorce decree became final. There was testimony that the pair were much in love with each other, and there is no dispute as to the closeness of their relationship nor as to her being his confidant; and that during the period of his terminal illness she was with him a great part of his waking hours. She continued her work in the office, where she may be said to have achieved a position of generally supervising many of the details which necessarily must be attended to in a busy medical practice. During his terminal illness it appeared that Dr. Fritschi depended upon her almost entirely so far as his contacts with the practice were concerned. Each morning she would go to the office and then around 10 o'clock would go to his hospital room, taking mail and reports of the business and discussing them with him. It appears that there were two insurance policies, ownership of which had been awarded to Dr. Fritschi in the divorce proceedings, and it appears that he made her beneficiary in them. One policy was for about $10,000 and one for $25,000. She was present in Dr. Fritschi's hospital room during the times when the attorney who drew the first will, a partner of Mr. Dwyer in law practice, consulted with the testator and when it was executed. It appears further that she was present during talks between Mr. Dwyer and Dr. Fritschi when the matter of the contested will was discussed before its preparation, but she was not present when that will was executed. At that time those present were only the testator, Mr. Dwyer and the witnesses to the will. It appears also that at Dr. Fritschi's request she obtained the attendance of the superintendent of the hospital as a proposed witness to the will and when it appeared that he might not be able to attend she, at the suggestion of Mr. Dwyer, called Mr. Ricci to come over and witness the will. Mr. Ricci was attending to that part of the business which had to do with the dispensing of eyeglasses.

The only direct testimony as to what occurred when the will was executed was given by Mr. Dwyer and by one of the witnesses. Mr. Dwyer described the previous consultations with Dr. Fritschi after which he prepared the contested will to meet the wishes of Dr. Fritschi as disclosed to him in those prior consultations. He took the prepared will to Dr. Fritschi's hospital room and in the presence of the witness he brought with him, his secretary, he went over the will paragraph by paragraph with Dr. Fritschi, who during that period was sitting on the edge of his bed reading a copy of the will as Mr. Dwyer read the original to him. Mr. Dwyer testified they discussed each and all of the provisions of the will, particularly the trust provisions with respect to the proceeds of the $100,000 policy of insurance. Mr. Dwyer and the witness, who was his secretary, both testified as to the soundness of mind of the testator when he executed the will.

Although three doctors, two of whom treated the testator professionally and all of whom were intimate acquaintances, and several intimate acquaintances who were lay persons, were called by contestants, not one gave an opinion that the testator was incompetent to make a will; that he did not know he was making his will, or the nature and extent of his property, or his relations to those who had claims upon him, or that he was suffering from delusion that affected his will.

Every person over the age of eighteen years, of sound mind, may dispose of property by will. Neither old age, illness nor physical weakness is a disqualifying factor, nor is every form of insanity nor every mental departure from the normal destructive of an otherwise testamentary act. The rule of law is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld.

‘The test of competency, therefore, is whether the testator had sufficient mental capacity to be able (1) to understand the nature of his act; (2) to understand and recollect the nature and situation of his property; and (3) to remember and understand his relations to the persons who have claims upon his bounty, and whose interests are affected by the will. * * *

‘The burden is on the contestant, to show either (a) mental incompetence generally, or (b) a delusion which directly influenced the testamentary act. And the point at issue is the testator's mental condition at the time of the execution of the will; evidence of his condition at other times is only of significance insofar as it aids in determining condition at the time of execution. * * *

‘* * * The following are not regarded as alone sufficient to establish incompetency: Lapses or loss of memory. * * * Inability to transact business. * * * Idiosyncrasies and peculiarities of behavior. * * * Cruelty, rages or unfriendly acts toward family. * * * Prejudices or false beliefs concerning relatives. * * *

‘As the court said in Estate of Selb (1948) 84 C.A.2d 46, 49, 190 P.2d 277: ‘It has been held over and over in this state that old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absentmindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.’ * * *

‘* * * Delusions or hallucinations not related to the testamentary act do not show incompetency. * * * And if the belief formed by the testator is founded on any facts, however unsubstantial they may appear, and however unfounded the resulting inference, the belief is not an insane delusion. * * *

‘* * * An unnatural or eccentric will, which disregards the normal objects of the testator's bounty, such as his immediate family, is an inconclusive factor.’ (Witkin, Summary of Cal. Law (7th ed. 1960), Wills and Probate, pp. 3060–3063.)

Giving to the proofs submitted by contestants full credence, disregarding any conflict appearing in the record, and giving contestants the benefit of any reasonable inferences that may be drawn from the proof presented, we hold that the proof signally fails to measure up to the requirements of the law as being sufficient to uphold the verdict in this case that Dr. Fritschi lacked testamentary capacity at the time he executed the contested will.

The proof equally fails to show undue influence exercised by Marie Teed. “Undue influence consists in the exercise of acts or conduct by which the mind of the testator is subjugated to the will of the person operating on it; some means taken or employed which have the effect of overcoming the free agency of the testator and constraining him to make a disposition of his property contrary to and different from what he would have done had he been permitted to follow his own inclination or judgment.' * * * ‘It is not undue unless the pressure has reached a point where the mind of the person subjected to it gives way before it so that the action of such person taken in response to the pressure does not in fact represent his conviction or desire, brought about perhaps by argument and entreaty, but presents in truth but the conviction or desire of another.’ * * *' (Witkin, supra, sec. 77, p. 3065). The proof of undue influence, like the proof of unsoundness of mind, must in the end be directed at the condition of the testator's mind and will at the moment the will is executed. “The unbroken rule in this state is that the courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of ‘a pressure which over-powered the mind and bore down the volition of the testator at the very time the will was made.”’ (Estate of Lingenfelter, 38 Cal.2d 571, 586, 241 P.2d 990, 1000; Estate of Goddard, 164 Cal.App.2d 152, 330 P.2d 399.) A will cannot be overturned on the mere speculation or suspicion that undue influence may have been used to procure it. (Estate of Gleason, 164 Cal. 756, 130 P. 872; Estate of Welch, 43 Cal.2d 173, 272 P.2d 512.) Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency. (Estate of Welch, supra.)

We are satisfied from the entire record that the evidence presented was insufficient to support the verdicts of the jury.

The order denying probate is reversed with instructions to the trial court to admit the will to probate.

I concur. Juries are prone to set aside wills and appellate courts are prone to set aside jury verdicts setting aside wills. (See, e. g., Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990; Estate of Arnold, 16 Cal.2d 573, 107 P.2d 25; Estate of Sanderson, 171 Cal.App.2d 651, 341 P.2d 358.) No one disavows the rule that appellate review of verdicts reached on conflicting evidence is just as limited in will contests as in other kinds of litigation. (Estate of Teel, 25 Cal.2d 520, 526, 154 P.2d 384.) Sharp dissents, however, have accused majority justices of paying no more than lip service to the rule. (Estate of Lingenfelter, 38 Cal.2d 571, 579, 241 P.2d 990.) One or two older decisions bluntly suggest that juries are wont to render verdicts upsetting wills merely on suspicion or because the testator has made a disposition not in keeping with the jurors' notions of propriety. (In re Wilson's Estate, 117 Cal. 262, 270, 49 P. 172, 711; In re McDevitt's Estate, 95 Cal. 17, 33, 30 P. 101.) The tugging tendencies of juries and appellate judges in will contests have even been the subject of statistical analysis. (See note, Will Contests on Trial (1953) 6 Stan.L.Rev. 91.)

I believe that the judgment before us can and should be reversed without entry into this thicket, because this case diverges from the usual contest over testamentary competence. Usually the testator's capacity is attacked for alleged derangement, psychosis, acute neurosis or other impairment of the rational faculties. The contestant has the burden of proving incompetence bearing directly upon the terms of the testamentary instrument. (Estate of Wright, 7 Cal.2d 348, 60 P.2d 434.) More specifically, the contestant has the burden of proving incompetence at the time the will was made. Evidence of the testator's mental condition either before or after execution of the will is important only as it bears upon his condition at the time of will execution. (Estate of Lingenfelter, 38 Cal.2d 571, 580, 241 P.2d 990.) In the ‘typical’ case evidence of irrationality, delusion and vagaries of conduct on other occasions is pertinent and admissible, because its cumulative effect is to provide an inference of lack of capacity at the time the will was signed. Such a contest involves claims of permanent or extended impairment of the rational faculties, such as senility, delusions, or withdrawal from reality, which, if not incurable, pervades the entire period of time before, during and after execution of the will. In sharp contrast, the essence of the present contest is drug-induced impairment.

Let us set to one side evidence of physical weakness and minor irrational displays. Dr. Fritschi's illness was terminal and his physical deterioration great. Previously he has exhibited some idiosyncrasies. Dr. Schroeder testified (it was hardly more than a suggestion) that Dr. Fritschi had exhibited a paranoid attitude ‘in this small phase of his dealings with his children.’ Such evidentiary shreds fall far short of demonstrating an abnormality which directly shapes the testamentary act.

Except for evidence of temporary blockages of the rational powers asserted by sedatives and pain-killing drugs, there was no evidence to prove, or to supply an inference, that Dr. Fritschi was mentally incompetent. Various witnesses, including medical colleagues, testified that on the occasion of hospital visits they found him drowsy and withdrawn. Dr. Schroeder testified that Dr. Fritschi was receiving sedatives and tranquilizers and suffered intermittent pains which called for narcotics. The visitors, then, were simply describing the appearance of a hospital patient under the influence of drugs. Mrs. Fritschi testified that on some days he was rational and other days irrational. None of contestant's witnesses described his appearance or condition on March 31, the day the will was executed. Thus there was no evidence of irrationality, amounting to lack of testamentary capacity, on that day. Although contestant called a number of witnesses, including three doctors, who may have been able to express an opinion as to Dr. Fritschi's mental competence, the record notably demonstrates that questions on that score were not asked.

I think it entirely proper to notice judicially, as a matter of common knowledge, that the effect of pain killers, tranquilizers and sedatives on the central nervous system is substantially temporary. When the drug wears off, comprehension returns. If medical science knows of a rare possibility of permanent or extended damage to the central nervous system attributable to such drugs, an aware trier of fact should require proof of it.

The inferences which may logically be drawn from testimony of mental derangement are quite different from those drawn from temporary drug-induced conditions. (See Sharpe, Medication as a Threat to Testamentary Capacity (1957) 35 N.C.L. Rev. 380–399.) Testimony that ‘X’ was psychotic yesterday may adequately demonstrate his lack of testamentary capacity today. Testimony that ‘X’ had a dose of morphine or scopolamine yesterday tells us little or nothing of his capacity to make a will today. Logic will not permit an inference of testamentary incapacity drawn solely from proof of recent administration of depressant drugs. Thus, the Michigan court in In re Cochrane's Estate, 211 Mich. 370, 178 N.W. 673, 674, stated: ‘* * * in the instant case the mental incapacity is claimed to be due to temporary causes, i. e., paroxysms of pain and the administration of opiates. The burden being on the contestant to show mental incapacity * * *, it is incumbent upon him to show that the temporary causes are operating at the time the will is made.’

The net effect is that evidence of recent drug administration must be coupled with additional proof of the testator's apparent condition at the time of will execution, such as lack of perception, semiconsciousness, delusional state or other impairment. Dr. Schroeder testified to the administration of various drugs during the night and early morning preceding execution of the will. Contestant produced no other evidence of Dr. Fritschi's condition on the day he signed his will. Thus, there was no evidence of impairment at the crucial time interval when the will was executed.

Contestant's own evidence indicated the intermittent character of Dr. Fritschi's drug-induced condition. Dr. Schroeder testified to the failure of various drugs and his search for other drugs and other combinations which would give his patient relief. He said that ‘some worked some days and some wouldn't.’

There was no conflict with proponent's evidence that on March 31, at the time of will execution, Dr. Fritschi was sitting on his bed, held rational conversations, whimsically referred to next day's surgery as ‘the grand opening,’ listened to the reading of the will, indicated agreement with it, that in short he was entirely rational. Whether we say that there was no conflict in the evidence of testamentary capacity at the time of will execution; or whether we say that contestant failed to meet the burden of proof—in either event the verdict was without evidentiary support and should have been set aside.

On the issue of undue influence, I join completely with my colleagues' views.

VAN DYKE, Justice pro tem.

SCHOTTKY, Acting P. J., concurs.

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