Robert G. HALEY, as administrator of the Estate of John Otis Haley, Plaintiff and Respondent, v. Frederick FRIEDMAN, as executor of the Estate of Anna A. Friedman, Deceased, Frederick Friedman, individually, Janice Stine and Jareen Whittaker, Defendants and Appellants.
Appellants (defendants below), three grandchildren of Anna A. Friedman (decedent) appeal from a judgment quieting title in plaintiff (respondent) to several parcels of real estate in the counties of San Bernardino and Los Angeles and awarding to respondent judgment for net rents which had been accumulated from said parcels of real eatate in the approximate sum of $11,000.
Respondent's cause of action was bottomed on a deed (Exhibit I) which reserved a life estate to decedent, signed August 2, 1957 and handed to him on August 4, 1957. He was 72 years old at the time. Decedent died 16 days later on August 20, 1957. She was 78.
The real property described in Exhibit I claimed by respondent and included in the judgment, had belonged to decedent since 1921, constitutes the bulk of decedent's estate, and was appraised as of August 20, 1957, at $188,000.
This appraised value appears to be conceded.
The original respondent, John Otis Haley (Haley) was a real estate broker and a stranger to the blood of decedent. Haley has died since entry of the judgment and is succeeded in this litigation by his son, the administrator of his estate.
Appellants unsuccessfully resisted the action in the trial court, contending primarily that the deed was spurious, that if not, it was only conditionally and not actually delivered, that there was no valid gift, that there was no valuable consideration and that there were prejudicial errors committed by the trial court in the exclusion and admission of evidence.
The record, which will be detailed in part hereinafter, reveals much confusion as to whether Haley tried his case on the theory of a gift or on the theory of valuable and adequate consideration.
Any contention on Haley's part that there was a gift, appears to have been abandoned before judgment. The trial judge made findings that the transfer was made for a valuable consideration, that decedent had independent advice, and that there was no fiduciary relationship between Haley and decedent.
The action was 17 days in trial. The Reporter's Transcript, inclusive of arguments, comprises 1612 pages. A substantial portion of the Reporter's Transcript and of the time spent in trial was devoted to an effort by appellants to prove that Exhibit I was not a genuine document.
Haley contended and proved to the satisfaction of the trial judge, that the deed was copied by one David H. Campbell on Campbell's typewriter, from a handwritten copy which took decedent two days to prepare. This handwritten copy was incinerated by Ceda L. Anderson, a part-time employed companion of decedent, at the direction of decedent. Anderson was present at the time Exhibit I was handed to Haley.
Appellants' contention that Exhibit I, allegedly typed by Campbell, is a spurious Document, is predicated wholly on the testimony of David A. Black, a document expert. Black testified that Exhibit I was actually typewritten by Haley on Haley's typewriter, and that the body of Exhibit I was typewritten by Haley on a blank sheet of paper and superimposed above the genuine signature of decedent.
Anderson testified that she saw decedent working on her handwritten copy of Exhibit I (the copy incinerated by Anderson) for two days and that decedent, when she had completed her handwritten copy, asked Anderson to call David H. Campbell, who during two previous years, had prepared decedent's income tax returns. When Campbell arrived, decedent said to him: ‘* * * I wish you would type it for me * * *.’ Campbell then took the handwritten copy and returned the following day with the typewritten draft thereof, delivered it to decedent, whereupon decedent said to Campbell in the presence of Anderson: “* * * I am going to sign this Deed and I want you and Miss Anderson to be witnesses to my signature.” ‘She saw Anna A. Friedman sign.’ ‘She passed it to Mr. Campbell. He signed it.’ ‘He passed it to me and I signed.’ ‘She was present when Anna A. Friedman delivered the Deed to John Otis Haley.’ ‘This was on August 4, 1957, when Mrs. Friedman, Mr. Haley and she were there.’
To discredit the evidence of Anderson, Campbell, Haley and other witnesses as to the genuineness of Exhibit I, Black, in great detail and at considerable length, pointed out many items which to him were demonstrated from the physical appearance of Exhibit I as the basis for his opinion that Exhibit I was a spurious document, even though the signature of decedent was genuine. All items pointed out were characteristic of a document which was filled out and completed over a signature which had been signed to a blank sheet of paper. Specimens of documents admittedly typed by Haley on Haley's typewriter were introduced and Black asserted, itemizing what to him were demonstrative bits of evidence, that Exhibit I was typed by Haley on Haley's typewriter.
This court has before it the direct evidence of Anderson, Campbell and Haley, as to the preparation, signing, witnessing and tradition of Exhibit I, as against the opinion evidence of Black, the expert, and like the court in Herbert v. Lankershim, 9 Cal.2d 409, 71 P.2d 220, it has before it documentary evidence, particularly photographic copies of the questioned Exhibit I in form and size of the original and also in enlarged sizes, together with exemplars of Haley's typing and typing from Haley's typewriter introduced for the purpose of impairing the bona fides of Exhibit I. The record before us, however, shows a substantial conflict and extraordinary as the circumstances are in the case at bench, the direct evidence of witnesses Anderson, Campbell and Haley cannot be termed unsubstantial.
We are mindful of the statement of the Supreme Court in Herbert v. Lankershim, supra, page 475 of 9 Cal.2d, page 253 of 71 P.2d: ‘* * * that expert evidence, * * * cannot be arbitrarily disregarded * * *’ and of the principle that the trial court's judgment even when based on conflicting evidence ‘* * * does not relieve an appellate court of its duty of analyzing the evidence in the light of reason and human experience and giving consideration to the motives and propensities which tend to influence or prompt human action, in an effort to solve the question as to whether the judgment is reasonably and substantially sustained by the evidence.’ (Lankershim, page 471 of 9 Cal.2d, page 251 of 71 P.2d.) (Horsman v. Maden, 69 Cal.App.2d 11, 15, 157 P.2d 882; cf. Division of Labor Law Enforcement v. Gifford, 137 Cal.App.2d 259, 267, 290 P.2d 281.) However, a conflict is raised by the direct evidence of the witnesses named and although the expert's testimony is convincing, we cannot say that it is inconceivable that a reasonable mind would inevitably resolve such a conflict in favor of appellants.
This court has said continuously and with rythmic reiteration pointed out that the trial judge is the final arbiter of conflicting evidence. This court is therefore bound by the finding of the trial judge that Exhibit I is not a spurious document. (Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757; Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183; Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689.)
Appellants charged that a fiduciary relationship existed between decedent and Haley. Haley denied this. This trial court by its Finding V held:
‘That it is not true that a fiduciary relationship existed between ANNA A. FRIEDMAN and JOHN OTIS HALEY on August 4, 1957, or during the period immediately before or after the execution and delivery of Plaintiff's Exhibit No. 1; that the relationship of principal and agent existing between ANNA A. FRIEDMAN and JOHN OTIS HALEY in 1955 for the obtaining of an increased price over and above the price recommended by JOSEPH THOMPSON, the broker who held a written exclusive listing executed by ANNA A. FRIEDMAN for the sale of her Bunker Hill and Lord Street properties but said relationship with JOHN OTIS HALEY terminated on completion of said sales and was not a continuing agency thereafter. There was no relationship of broker and client, principal or agent or investment counselor and client on August 4, 1957, or during the period immediately before or after said date; that it is true that the relationship between ANNA A. FRIEDMAN and JOHN OTIS HALEY was one of mutual respect and devoted friendship and she considered JOHN OTIS HALEY a devoted, loyal, true and generous friend; that it is true that she was 78 years of age and JOHN OTIS HALEY was 72 years of age, married and living happily with his wife and adult daughter, and supporting an adult sister-in-law, HENRIETTA GRANT.’
Although the trial court in the above finds Haley was decedent's agent for the limited period set out, Haley denied that he was decedent's agent in 1955, or that he was her agent at any time, or that he had at any time been paid for any service he rendered to decedent. He testified in part:
‘I never in my life acted as her agent. I was always just simply as a friend, a good, close friend and just a confidential friend; that is all.’ And in respect of payment he testified:
‘* * * [S]he has never paid me a dollar for any consideration like that and I have never at any time subjected myself in that capacity as an agent to her. Anything I did for her was just like I was doing it for my mother, and I just took great pleasure in doing it because I loved to.’
Other than Haley's denial, all the evidence in the record, most of it coming out of the mouth of Haley himself, proves that he was not only ‘* * * a good, close friend and just a confidential friend * * *’ as he characterizes himself, but during the many years of association between the two, commencing a few days from the day he first met decedent to and through August 4, 1957, he was her working agent who was paid for his services, either in money or reciprocal service—or both. Some of the excerpts from Haley's testimony showing the confidential nature of the relationship are set out below.1
Haley calls this court's attention to a part of the testimony of Ray Meharry Mitchell, a witness called by appellants in an attempt to show that Haley was not decedent's agent and that there was no confidential relationship. Mitchell testified on cross-examination that decedent never told him that Haley was her real estate broker, or her real estate agent in connection with the two condemnation sales referred to in Finding V.
It may be assumed that Haley could have produced a dozen people to whom decedent talked at various times between 1955 and her death on August 20, 1957 and never told any of them that Haley was her agent. This type of negative testimony can hardly be called probative evidence.2 (Firddle v. Southern Pac. Co., 126 Cal.App. 388, 392, 14 P.2d 568; In re Edmundson's Estate, 259 Pa. 429, 103 A. 277, 2 A.L.R. 1150, 1155; Boylan v. Meeker, 28 N.J.L. 274.)
In Boylan, supra, the court said at page 281:
‘* * * If it be satisfactorily proved by the testimony of one unimpeached witness that Meeker knew of this will, spoke of it anywhere at any time, can the testimony of ten thousand witnesses testifying to every subsequent movement of his life, that he never again spoke of it or of its contents, overthrow it?’
It is true, as stated in Cox v. Schnerr, 172 Cal. 371, 378, 156 P. 509, 512: ‘[T]hat proof of mere friendship is not sufficient to establish the sort of confidential relation which forces the donee of a valuable property to treat with his donor in such a way as to preclude all possibility of undue influence.’ However, it has never been held to our knowledge that ‘mere friendship’ rules out the possibility of a confidential relationship or that it excludes the probability that mere friendship can lead to a confidential relationship. In this case, as in Cox, supra, ‘* * * plaintiff himself furnished proof of the utmost trust and confidence reposed in him * * *’ by decedent.
In Vai v. Bank of America, 56 Cal.2d 329, at pp. 337–338, 15 Cal.Rptr. 71, at p. 76, 364 P.2d 247, at p. 252, the court said:
“A confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other's interest in mind. A confidential relation may exist although there is no fiduciary relation; it is particularly likely to exist where there is a family relationship or one of friendship * * *.' Restatement Trusts 2d, § 2, Comment b.' (Emphasis added.)
We have pointed out that we are bound by findings of a trial court made upon conflicting evidence, when there is substantial evidence to sustain a finding so made, irrespective of how substantial and how persuasive evidence may be which is contrary thereto. It is equally true that we are not bound by a finding of a trial court when there is no substantial evidence to sustain it.
In this case there is no evidence to contradict a fiduciary relationship other than Mitchell's negative testimony that decedent did not tell him that Haley was her agent. We do not consider that such evidence raises any kind of conflict.
The testimony of all the witnesses when analyzed, shows that Haley was an agent of decedent of many years standing and that the agency continued ‘up to the time of decedent's death’ and that, as Haley himself testified, he was ‘* * * a confidential friend * * *.’
We think that Haley's testimony together with the record before us compels a rejection and we do reject that part of the Finding V which holds that there was no confidential relationship betweeen Haley and decedent when, on August 4, 1957, decedent handed him Exhibit I.
In these circumstances the burden of proof, which usually rests upon the person asserting fraud, shifts to the person standing in the relation of trust and confidence to prove that he ‘* * * exhibited that uberrima fides which removes all doubt respecting the fairness of the contract. And this rule does not apply merely to those who bear a formal relation of trust to those with whom they deal—not only to attorneys, physicians, trustees, clergymen, kinsmen, and others who by the very force of their occupations or relationship are presumed to be in the class of persons bound to act with the utmost good faith. It applies in every case ‘where there has been a confidence reposed which invests the person trusted with an advantage in treating with the person so confiding.’ [Citation.]
‘In every transaction of this kind, one who holds such confidential relation will be presumed to have taken undue advantage of the trusting friend, unless it shall appear that such person had independent advice and acted not only of his own volition but with full comprehension of the results of his action.’ [Citations.] (Cox v. Schnerr, supra, 172 Cal. 371, 378–379, 156 P. 509, 513.)
The cases are legion to this effect. (Herbert v. Lankershim, supra, pp. 409, 427 of 9 Cal.2d, 71 P.2d 220, cases cited therein; 3 Pomeroy, Equity Jurisprudence 800.)
The trial judge found:
‘That it is true that ANNA A. FRIEDMAN received independent advice from her tax counselor, DAVID H. CAMPBELL, prior to executing and delivering said grant deed to JOHN OTIS HALEY on August 4, 1957.’
No evidence is called to our attention by respondent which supports this finding. We have examined the whole record, the Reporter's Transcripts, the Clerk's Transcript, and all of the voluminous exhibits for evidence which will support the finding that decedent had independent advice in respect of Exhibit I on August 4, 1957 or at any other time, from David H. Campbell—or anyone else. We find none.
The whole of Campbell's testimony, as the same is summarized in respondent's brief, is as follows:
‘David H. Campbell testified he was 76 years of age. He knew Anna A. Friedman. He made out her income tax returns for '55, '56. He was a witness to the signing of Plaintiff's Exhibit 1 by Anna A. Friedman. She said she was giving some of her properties to Mr. Haley. He typed every bit of the Grant Deed. She gave him the paper. Ceda Anderson called him. Anna A. Friedman said she wanted to give Mr. Haley some of her properties. She asked me to type her written Deed on paper she gave me. He found the writing ‘very plain’ and he said he could do it and have it back the following morning. He had no trouble understanding her. She was very explicit. She knew what she was doing and was not confused. She walked very steadily to the table and from the table to the bureau to get the money to pay him.'
Nothing in the testimony of Anderson, the paid companion of decedent for approximately four continuous weeks prior to her death, who saw decedent prepare the handwritten deed, witnessed it together with Campbell and saw it handed to Haley, even squints at independent advice. Anderson's testimony, as the same is summarized in Haley's brief, is set out in full.3
We should add that our own examination of the record discloses in addition that Campbell was not present on August 4, and so far as the record shows, never saw decedent after August 2, when he delivered Exhibit I to decedent. Also, if Campbell was a public accountant, a certified public accountant or a bookkeeper, it was not established on either direct of cross-examination. It was established that he was not and never had been a lawyer, that he was not and never had been in the real estate business and that the amount decedent paid Campbell when ‘* * * she got up * * * and went to the drawer there in the room and paid me, and I left’ was $2.00.
There is no evidence in the record to sustain the finding that decedent received independent advice, legal or other wise, and the finding is rejected.
Exhibit I recites on its face a consideration of ‘* * * Ten Dollars ($10.00) and other valuable consideration * * *.’
It has already been pointed out that it is difficult to ascertain from a reading of the Reporter's Transcript whether Haley was trying his case on the theory of a gift from decedent to him or whether he was in fact contending that he had an arm's length transaction with decedent and paid a valuable consideration for the properties conveyed. This conclusion is inescapable when one reads the testimony of Haley, Haley's wife and other Haley witnesses, particularly those present at the time of the preparation and tradition of Exhibit I,4 and the numerous remarks of the trial judge acquiesced in by Haley. Until findings were actually made, it clearly appears that the trial judge, thought that the case was being tried on the theory of a gift and not an arm's length transaction for a valuable consideration. It will suffice to indicate the theory upon which the trial judge tried the case by a few comments of the trial judge which are reasonable fascimiles of many others made throughout the trial. (Wirz v. Wirz, 96 Cal.App.2d 171, 176, 214 P.2d 839, 15 A.L.R.2d 1129; People v. Van Gorden, 226 A.C.A. 810, 814, 38 Cal.Rptr. 265.)
Thus, the trial judge said:
‘Now, is it one taking advantage of the other because one makes a gift that some of the relatives do not agree with?’
On another occasion, the trial judge speaking of the testimony of ‘* * * five witnesses who have testified what the intention of the testatrix was * * *,’ (Emphasis added.) stated: ‘Now you are going to have to overcome that. That is your obligation here, to convince the Court that this was not a free and voluntary gift inter vivos.’
On still another occasion the trial judge said:
‘Merely the fact that, we'll say, a gift was given, let's say by a client to a lawyer, that doesn't raise a presumption of fraud.’
Counsel for appellants insisted that under the law a presumption of fraud was created by such a transaction, that their whole case was based upon the acceptance by the court of such a presumption. The court replied: ‘You mean a gift, any gift?’
It also appears from the testimony of Haley's wife read in evidence from her deposition previously taken, that Haley hold his wife it was a gift.5
The confusion as to which theory the case was being tried on is carried to final argument. Counsel for Haley argued both theories to the court.6
Finding IV of the trial judge in respect of valuable consideration which we discuss later, incorporates almost verbatim all of Haley's closing argument on the subject of valuable consideration except item (c) thereof.7
The pleadings and the pretrial statements indicate loosely that Haley proceeded on the theory that he obtained the deed for valuable consideration.
It appears that Haley tried his case to permit himself the opportunity to elect the theory upon which he would submit his right to Exhibit I and finally decided to do so on the theory of valuable consideration fortified by a background complexion that decedent ‘* * * found some warmth and happiness in her relationship with John Otis Haley,’ and found none in the companionship of her own grandchildren.
However, the record, as will be pointed out hereafter, does not support Haley's argument that decedent ‘* * * received no love, respect or affection from her grandchildren * * *’ and as already quoted, paradoxical as it may be, counsel for Haley, after making the above accusation, admits in the next succeeding sentence that Haley ‘* * * would take her on these trips to visit her own blood kin at Garden Grove * * *.'6 Since it is without dispute that these trips were between 1955 and her death in 1957, it seems odd that decedent would visit blood kin who gave her ‘* * * no love, respect or affection * * *.’ In any event, it is clear from the findings and the judgment that the theory of a gift was abandoned by Haley and the trial judge. It was decided by the trial court that the grant of properties included in Exhibit I was for valuable consideration.7
Since well settled rules require us to make all presumptions and draw all inferences in favor of findings made by the trial court, and compel us to sustain such findings if there is any substantial evidence in support thereof, we are compelled to prolong this opinion by making an analysis of evidence we would not otherwise include herein.
Haley, called as a witness on his own behalf, testified in the first few seconds without objection that he had been continuously married to Mrs. Haley since 1914; that he had two children, one of whom was for the last four years a supervisor in Ventura—‘that is not now, but he was,’ and that for an extended period of approximately ten to fifteen years he had been taking care of his sister-in-law who lived with his wife and himself and that he met Anna Friedman, the decedent, in 1948 at his real estate office in Hollywood. Substantially, the balance of Haley's direct follows:
‘A A real estate office, yes.
‘Q Was it there you first became acquainted with Anna Friedman?
‘A It was, yes.
‘Q When did your mother die?
‘A In 1912. I——
(Objection by counsel that this was not an issue and argument.)
‘* * *
‘THE COURT: All right. The objection will be overruled at this time and the answer will stand. You may renew your objection later, if you desire.
‘Q * * * Mr. Haley, you grew to be very fond of Anna A. Friedman from the first time you saw her?
(Objection by counsel—overruled.)
‘* * *
‘Q * * * Mr. Haley, will you state to the Court the basis for that respect and fondness?
‘* * *
‘A She resembled my mother, and——
‘MR. O'CONNOR: That is enough.’
Counsel for appellants protested to the court that respondent's counsel was controlling the witness. The court said:
‘THE COURT: Well, do you wish to explain the resemblance?
‘Mr. O'Connor, counsel has indicated that you have controlled or interrupted the witness.
‘MR. O'CONNOR: Well, I wanted to shorten it up because the trial has been prolonged, your Honor, and I do not want to plead guilty of prolonging the agony of this trial.
‘I wanted a simple, curt answer.
‘THE COURT: Well, you may go into this on cross-examination, if you wish to develop it further.’
Haley was then shown Exhibit I, and identified the signatures of decedent, Ceda Anderson and David Campbell, and stated that it did not have ‘* * * the blue back on it * * *’, when he first saw Exhibit I at decedent's home on August 1, 1957 when decedent handed Exhibit I to him in the presence of Ceda Anderson. The following then took place:
‘Q Just briefly tell the Court what she said.
‘A I don't know that I could relate that word for word, or anything like that. It is——
‘Q Just give the substance.
‘A Well, she said that—of course this—this is—‘I am giving you this Deed, John. You remember my pet saying when we have been out many times, that at the sunset of life nothing is more dreaded than loneliness and being all alone, and nothing will do but a good, loyal, loving friend, and you know, John, that there is nothing in life that is more precious and comforting than a conscientious, loveable friend, and that is what you have been all your life to me.
“You have helped me so much, done so much. You have saved me money in helping me in my properties, and I certainly love you for that.'
‘She said: ‘My estate is not very large, but I am giving you several properties, of which Frederick has objected to, but the properties belong to me. I have worked hard for them and I can do what I want to, and I am going to give them, these properties, to you, as they have been provided with the money that is in the banks, in the savings and loans, and so I am giving these properties to you.’
‘And she handed me the Deed to the property, and I said, ‘Why, Anna, you have done what you said you were going to do.’ And I said, ‘I don't know how to thank you for it.’
‘We were sitting on the davenport in the living room and I put my arms around her and kissed her, told her it was very wonderful of her to do that, and she said that she wanted to, and that she'd had it in mind for a long time.
‘She told me, she said, ‘Well, I have reserved——’
‘Well, she handed me the Deed then and she said, ‘I have reserved a life estate in the Deed.’
‘I said, ‘Why, Anna, that is what I'd want you to do and if you hadn't, it would be just the same anyway.
“I don't know how I can thank you for this, only by caring for you the rest of your life.'
‘And she said, ‘Well, that is all I could expect. It is wonderful.’
‘And so she wanted me to examine it, take a look at the Deed, which I was unfolding, and I said, ‘I notice here, Anna, the consideration of $10,’ and I said, ‘To make this Deed a true gift and a true Deed,’ I said, ‘I want to give you $10.’
‘And she said, ‘That is just simply a form.’
‘And I said, ‘But I want to make it a true Deed,’ and so I handed her $10.
‘She said, ‘All right, I'll accept it.’ And so that is what I did.
‘She said, ‘Take it and take it home and keep it.’
‘And I said, ‘I hope that it will be for a long, long time.’
‘And she said, later on, later on when she was—later, oh, when she is feeling good, that we are going out. Why, she said, that we could go to have it acknowledged or have it recorded, or something.
‘That is about the substance of it.
‘Q Now, did you remain there for some time?
‘A Well, not so very long. Well for some time, yes. I don't recall how long. It was maybe an hour or so, an hour, about an hour, something like that, an hour and a quarter or an hour.
‘Q Had you known that this was her intention to deliver this Deed to you prior to this time? Just ‘yes' or ‘no’.
‘Q And when did you first know that this was her intention?
‘A I don't know that I understand your question. You mean this particular Deed or——
‘Q This particular Deed.
‘A Well, this—she gave me the Deed on Sunday. This was Sunday. And I stopped by Saturday and I was going up to Hollywood and I thought maybe that she and Ceda Anderson would like a little ride, just to get out of the house, and so I—because I only had a couple of minutes to stay—they wanted me to stay longer—so Mrs. Friedman said, ‘You are going to be here tomorrow, Sunday?’ She said, ‘I have got a surprise for you.’
‘And so I said, ‘I certainly will be here.’
‘Q But did you know at that time that she was going to Deed property to you?
‘A No, I didn't.’
Haley continued to testify that in the latter part of 1956 he drove decedent and Mrs. Holman to San Bernardino, looked at some acreage belonging to decedent and that decedent said: ‘* * * that if she didn't trade this land off for some business property, why, that she was going to give it to Mr. Haley. She was more or less talking to Mrs. Holman.’
Again, in respect of this statement of decedent, Haley testified:
‘Q My question is this: Did Anna A. Friedman ever express her intention to deed this acreage to you in the presence of yourself and any other person, other than Mrs. Holman? Just ‘yes' or ‘no’.
‘If you don't recall, you can say you don't recall.
‘A I don't recall at this moment. I never even——
‘MR. O'CONNOR: All right, that is sufficient.
‘THE WITNESS: I never even gave that a thought.’
Haley then continued to tell how on October 4, 1957, (60 days after Exhibit I was handed to him, decedent having died on August 20) he took Ceda Anderson to Mrs. Rita Hayden, a notary public he did not know to have the Deed acknowledged.
Objections at this point to what was said between Haley, the notary and Ceda Anderson, interrupted the flow of testimony. However, it appears from Haley's testimony as to what took place before the notary, that when decedent, on August 2, 1957, signed Exhibit I, she did so in the presence of Anderson and Campbell, and that each of the latter at her request signed Exhibit I as a witness. There was no formal acknowledgment of decedent's signature on August 2, 1957.
Anderson's testimony on this point is set out in footnote 8.8
Haley then went on to state that after Miss Hayden had made the acknowledgment, he put the blue back on the Deed and had it recorded in the counties of Los Angeles and San Bernardino.
It was at this point in the proceedings that the Deed was marked ‘Exhibit I’.
It should be noted here that Haley did not notify any of appellants until the latter part of July, 1958, about Exhibit I or the recording thereof.
It was stipulated for the record that Haley made a demand on appellants prior to commencement of the action for rents which had been collected from the parcels of real estate included in Exhibit I by appellant-executor, and that the demand had not been honored, and that the parties would get together in an attempt to submit the proper figures to the court.
Haley's evidence and other evidence summarized herein (and in the footnotes) is all there is on the subject of consideration. It will be noted that Haley on his direct examination, which is excerpted almost in full, testified to two items of consideration: (a) he said he paid decedent $10 and (b) he promised to ‘care for her’ for the rest of her life. At the time of the tradition of Exhibit I, there were, in addition to decedent, only two people in the room, Haley and Anderson. Haley does not, nor does Anderson, or any other witness, claim and nowhere in the record is there any evidence which indicates that decedent at or about the time she handed Haley Exhibit I, had in mind or said that she wanted Haley to have Exhibit I because of alleged paid or unpaid services Haley had rendered to her in respect to (a) Bunker Hill; (b) Lord Street; or (c) the apartment house Haley says he kept her from buying, as argued by Haley's counsel.6 Nor was any other service, paid for or not, mentioned, for which she might have been obligated to pay Haley.
In fact Anderson does not nor does any witness other than Haley testify to the payment of the $10.
Anderson does corroborate the statement Haley says he made about caring for decedent. Anderson testified: ‘And she said, ‘Yes, but you will notice that I reserved a life estate in that.’
‘And he said, ‘Well, that is what I want you to do, naturally.’ And he said, ‘The only thing I can say is that I'll look after you the rest of your life,’ and he said, ‘I just can't tell you how much I appreciate it.’'
Anderson also testified, however, that at the time she signed Exhibit I as a witness on August 2, decedent said in presence of Campbell:
‘A She said that she loved Mr. Haley, she wanted to give him some of her properties and that she was making a Deed to him for those properties.
‘She said she thought more of him than she did of her family; that he had done more for her; he'd been a wise counsellor and given her much good advice; that he had taken her very many places and done lots of nice things for her and had made life worth living.’
Speaking of these types of admissions by a decedent, the court said in Austin v. Wilcoxson, 149 Cal. 24, 29, 84 P. 417, 419: ‘[I]t is not stating it too strongly to say that evidence so given under such circumstances must appear to any court to be in its nature the weakest and most unsatisfactory.’ (Accord, Estate of Emerson, 175 Cal. 724, 727, 167 P. 149.)
It is clear from Haley's testimony that the $10 payment was volunteered and not asked for and although mentioned in Exhibit I, the decedent said to Haley that it was only a form. It is also clear there is nothing in Exhibit I which requires the promise ‘only by caring for you * * *’ testified to by Haley, or ‘I'll look after you the rest of your life’, which is Anderson's version of what Haley said. This promise was not bargained for by anything in Exhibit I or by anything decedent said at the time of the conversation between Haley and decedent, or at any other time before or after the tradition of the deed.
Those portions of the record to which we have already called attention in our discussion of the confidential relationship of the parties, and specifically our discussion on the two condemnation sales, show overwhelmingly that Haley was paid for his services in connection with each sale. The finding to the contrary is rejected. In the circumstances the itemization in the finding of nonpayment for past services must be ignored.
Consideration, to be valid and binding, must be actually bargained for, agreed upon and accepted. (Bard v. Kent, 19 Cal.2d 449, 452, 122 P.2d 8, 139 A.L.R. 1032, MacDonald v. Rosenfeld, 83 Cal.App.2d 221, 188 P.2d 519, 1 Williston on Contracts (3rd ed.) 370.)
In Bard v. Kent, supra, at page 452, of 19 Cal.2d, at page 10 of 122 P.2d, the court said: ‘No act of an offeree, however, can constitute consideration binding upon the offeror unless the latter agrees to be bound in return therefor. [Citations.] In the words of the Restatement of Contracts (§ 75): ‘Consideration must actually be bargained for as the exchange for the promise. * * * The existence or non-existence of a bargain where something has been parted with by the promisee or received by the promisor depends upon the manifested intention of the parties. * * * The fact that the promisee relies on the promise to his injury, or the promisor gains some advantage therefrom, does not establish consideration without the element of bargain or agreed exchange.’'
Mere recital and payment of a formal consideration when the facts show that such has not been bargained for constitutes nothing but a nominal consideration and consequently not the real price or inducement for the making of the promise. (Clayman v. Bibler, 210 Iowa 497, 231 N.W. 334.) The essence of consideration is that the inducement for the exchange be the subject of the bargain. Assuming that Haley felt the urge to make a promise because of decedent's generosity, such an impulse which was not bargained for cannot serve as consideration for a conveyance of property. (Wisconsin & Mich. Ry. Co. v. Powers, 191 U.S. 379, 24 S.Ct. 107, 48 L.Ed. 229.) ‘No matter what the actual motive may have been, by the express or implied terms of the supposed contract, the promise and the consideration must purport to be the motive each for the other, in whole or at least in part.’
In the case at bench, the undisputed evidence is that decedent was a woman of means, that she had reserved a life estate in the properties described in Exhibit I, that these same properties were income producing. There is no showing that Haley had sufficient means to ‘support’ decedent as the trial court finds in Finding IV for the ‘rest of [her] life’ or for any period of time or that Haley had sufficient means to support himself and his family or indeed that he had any means. If, by the promise ‘to care for’ or ‘look after’ Haley meant merely to pay attention to decedent by auto rides, business advice and various forms of personal attention, the promise is too vague and is unenforceable. (Ellis v. Klaff, 96 Cal.App.2d 471, 478, 216 P.2d 15.)
If there be no legal consideration, no motive will support a promise. Consideration is a present exchange bargained for in return for a promise. (MacDonald v. Rosenfeld, supra, 83 Cal.App.2d 221, 188 P.2d 519.)
Holdsworth, in Volume VIII of his History of English Law, says at page 17 thereof:
‘The law has never attempted to adjudicate the adequacy of consideration. That is a matter for the parties to the contract. If a person chooses to make an extravagant promise for inadequate consideration it is his own affair. Thus in 1587, in the case of Sturlyn v. Albany, it was said that ‘when a thing is to be done by the plaintiff, be it never so small, this is a sufficient consideration to ground an action’; and this principle is an accepted doctrine of our modern law. But though the consideration need not be adequate, it must be sufficiently definite for the Court to see that it really exists.'
However, when the background and the uncontradicted evidence of this case, pertinent portions of which have been set forth in the body of the opinion and in the footnotes, are considered, we are impelled to the conclusion that the unbargained for, voluntary payment of ten dollars, which decedent said was a form, and the unbargained for, vague and, as will be shown, unfilled promise to ‘care for’ decedent, which was in no part performed, plus past services which were paid for, and so far as the record shows were not even in the mind of decedent or Haley at the time of the tradition of Exhibit I, do not constitute consideration for the transfer of Exhibit I, even under the stringent rule advanced by Holdsworth in the above excerpt.
We are satisfied that there is no evidence in the record to support any part of said Finding IV.7
Finding IV is therefore rejected.
Assuming, however, there was a contract and that there was no confidential relationship, the record shows, not by a preponderance of evidence, but beyond any reasonable doubt, that the transaction was invested with the presumption of fraud. As noted supra, this shifts the burden of proof to respondent to show the fullest and fairest dealings between the parties.
We feel that the language of the court in Lankershim, supra, page 472 of 9 Cal.2d, page 251 of 71 P.2d, is peculiarly appropriate to the record in this case: ‘* * * [T]he fact that the consideration passing from the decedent to the plaintiff was so grossly disproportionate, as the books put it, as to shock the conscience of all men, cannot be laid out of the case; nor can the confidential relations that existed between the parties, in the absence of evidence of independent advice, be disregarded.’
‘There was no consideration, or at least no adequate consideration, for the deeds and from this alone the presumption of undue influence arises. The case is one of that class of bargains that are said to be ‘of such an unconscionable nature and of such gross inequality as naturally lead to the presumption of fraud, imposition, or undue influence; * * * such bargains as no man in his senses, and not under delusion, would make on the one hand, and as no honest and fair man would accept on the other, being inequitable and unconscionable bargains.’ 1 Story's Eq.Jur., § 244, et seq.' Allore v. Jewell, 94 U.S. 506 [56 S.Ct. 149], 24 L.Ed. 260; Hume v. U. S., 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393; Bassick v. Aetna Explosives Co. (D. C.) 246 F. 974.' (Herbert v. Lanershim, supra, page 484 of 9 Cal.2d, page 257 of 71 P.2d.)
As a point of interest it should be stated that the record is entirely devoid of any evidence to show that after the tradition of Exhibit I on August 4, 1957, Haley supported, in a financial sense, or cared for, or looked after decedent in a personal and attentive sense. No evidence has been called to our attention and we find none which shows that Haley ever saw or spoke to decedent after August 4, 1957. On these facts here was a complete failure of performance.
In spite of Anderson's testimony that ‘* * * she thought more of [Haley] then she did of her family * * *,’ it appears without dispute that appellant Frederick Friedman and not Haley was called when it appeared certain that decedent must be sent to the hospital.
Also it appears without dispute, except for the remarks attributed to decedent by Haley's witnesses, that although there was a definite breach between decedent and her daughter Grace Stine (who is not involved in this litigation) there was not and never had been any rift between decedent and appellants Janice Stine and Jareen Whittaker, daughters of Grace, and appellant Frederick, the son of a deceased son of decedent. It appears further without dispute that decedent had joint bank accounts with appellants, and that the portion of her estate which was disposed of by will, went to appellants, and that Frederick was named as executor.
Other than the type of testimony given by Anderson to the effect that decedent said ‘* * * I never see my grandchildren’, there is nothing that indicates that there was a rift of any kind between the three grandchildren and decedent from the date of their birth until the death of the grandmother. It has already been pointed out that admissions of this type are the weakest kind of evidence and are unsatisfactory. (Austin v. Wilcoxson, supra, 149 Cal. 24, 29, 84 P. 417.) The record in respect of the relationship of decedent with her grandchildren is abundantly to the contrary. In fact it shows without contradiction, except for the type of evidence referred to, that appellant Frederick Friedman was in constant touch with his grandmother.9
The refusal of decedent to accept the services of any doctor or even the suggestion of medical help such as oxygen, is made clear by the whole record in which it is asserted and reiterated by the testimony of practically every witness that decedent was a firm and devout adherent to Christian Science.
There were many prejudicial errors committed during the course of the trial, only some of which will be treated. Any one of these prejudicial errors would be sufficient to require a reversal.
Cross-examination of Haley was interrupted on objection of improper cross. Counsel for appellants responded by saying in part:
‘* * * I propose to show that he [Haley] has had a long experience in real estate matters; that he has, over a period of years, engaged in a course of conduct of clouding the title to real estate owned by others; that he has engaged in a conspiracy with others to deceive the public by means of recorded documents, and to acquire from others by deceit their properties; * * *’
‘* * *
‘THE COURT: All right. Then I will ask you to familiarize yourself, and counsel for the plaintiff also, with the doctrine of res inter alios acta, which relates to transactions or incidents not related to the subject matter of a trial; and be prepared to discuss that because, unless you can convince me that that doctrine does not apply to that line of testimony in this case, all of such testimony will be excluded.
‘* * *
‘THE COURT: I found in my notes two cases that I would like to have counsel read, and these relate to the doctrine of res inter alios acta, which is 76 Cal.App.2d, 207 [172 P.2d 710]; [sic] and 129 Cal.App.2d, 519 [277 P.2d 477].’
The court sustained an objection to the testimony, even though one of the cases cited by the court, to wit: Firlotte v. Jessee, 76 Cal.App.2d 207, 172 P.2d 710, was complete authority for appellants' position, and the other case, McDonald v. Jones, 129 Cal.App.2d 519, 277 P.2d 477, indicated that the testimony would be proper.
In Firlotte, the court speaking in respect of a similar situation, although not on all fours with the facts of the case at bench, said at page 211 of 76 Cal.App.2d, at page 712 of 172 P.2d:
‘Said portion of section 1868 of the Code of Civil Procedure, referred to in the foregoing opinion, reads as follows:
“Collateral questions must therefore be avoided. It is, however, within the discretion of the court to permit inquiry into collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness.'
‘Another case in point is Bone v. Hayes, 154 Cal. 759, 99 P. 172, 176, which cites with approval the Moody case, supra, and quoting from 1 Wigmore on Evidence, section 377, states that ‘While, ordinarily, evidence that a certain contract was made with A. is not admissible to show that a similar contract was made with B., it has repeatedly been held that such evidence may, in the discretion of the court, be allowed, where the circumstances indicate a strong probability that the course followed in one instance would be followed in others.’
‘It is the latter situation which prevails herein. By reason of the circumstance that defendant's sole defense to plaintiffs' action was a question of fact relating to the claimed reservation by him of a right to use the same land for pasturage of his cattle and the circumstance that defendant also had offered his identical land to the witness Frank Faniani without such a reservation, said testimony therefore could reasonably be said to have a direct connection with the question in dispute, and to be essential to its proper determination, as well as affect the credibility of the defendant as a witness. Even if it be concluded that such testimony was collateral, said code section requires only that such issues are to be ‘avoided,’ not excluded. And as said section provides that the admissibility of such testimony is addressed primarily to the sound discretion of the trial court, therefore unless it can be said that the evidence ‘is without any weight whatever in determining the issue, the action of the court in receiving it will not be reversed.’'
Later, during the course of the trial, counsel for appellants attempted again to bring in evidence of a prior similar fraud during the cross-examination of Haley on the theory of credibility and impeachment, at which time the court said:
‘Now it seems to me you are going to the Vogel case. Now you can bear in mind, and this is the ruling of the Court, that the Court is not going to try any other case to determine whether the merits of that case are comparable to the merits of this case or whether the evidence is similar.’
Prior to said statement of the court, appellants' counsel in arguing his right to introduce evidence of other similar frauds, had stated to the court:
‘* * * [A]nd the very case that your Honor cited to us yesterday stands for the proposition, * * *.’
At another point in the trial, it was stipulated between counsel that a deposition from which appellants were about to read ‘* * * was the testimony given by John Otis Haley in the action entitled, ‘Emma C. Dold, et al., vs. John Otis Haley, Superior Court of Los Angeles' * * * No. 709,655, * * * May 25, 1959.’ An objection was made to the reading of any such testimony from said deposition on the ground ‘* * * that it is collateral, it doesn't tend to prove or disprove any issue in this case, and * * * does not even impeach anything that this client has said under 2055.’
Appellants' counsel urged that the testimony to be read from the deposition ‘* * * is not only for impeachment but for evidence in the case, that he disclaimed receiving anything by way of gift from anyone else, and this was testimony given in Dold vs. Haley, * * * where a matter of an alleged gift was at issue in that case, * * *.’
The court sustained the objection and excluded the reading of the testimony.
Other than the proposal to show a similar instance of fraud already referred to, appellants made no specific offer of proof as to precisely what the facts were in the Dold v. Haley case, which the record unquestionably identifies as the Vogel case. However, respondent in his brief refers to the Vogel case and urges that the record in that case showed:
‘Fraud was not found in the Vogel case. That case was settled Haley receiving two acres in Wilmington and $2,500.00 cash. Vogel, on the advice of his own lawyer, made a Deed to Haley which was sought to be set aside in that action.’ (Harmon v. Keough, 41 Cal.App. 773, 775, 183 P. 201.)
Appellants in their brief set out the stipulated judgment in the Vogel case, and it shows the subject matter thereof was a $60,000.00 apartment house belonging to Vogel. The legal description of the apartment house was interlined in a Deed from Vogel to Haley which described an entirely different piece of property in Compton. It also shows that the Deed was not made on the advice of Vogel's lawyer to Haley, but that the Deed in question was actually typed by David Campbell, and that it was delivered to Haley under circumstances similar to those in the instant case. When the Dold action was brought, it was settled by a stipulated judgment in which Haley gave up an alleged interest in the $60,000.00 apartment house, and instead of receiving $2,500.00 cash from the estate of Vogel, he actually paid the estate of Vogel $2,500.00.
It seems obvious that the evidence appellants sought to bring out from Haley on cross-examination was pertinent and that failure to permit the opportunity to have it brought out was prejudicial error. The case of Firlotte, supra, cited by the trial judge, is ample authority. However, the authorities are numerous to the same effect. (Evans v. Gibson, 220 Cal. 476, 31 P.2d 389; The Atkins Corporation v. Tourny, 6 Cal.2d 206, 215, 57 P.2d 480; Janisse v. Winston Inv. Co., 154 Cal.App.2d 580, 588, 317 P.2d 48, 67 A.L.R.2d 225; Wright v. Rogers, 172 Cal.App.2d 349, 363, 342 P.2d 447; Messerall v. Rubin, 195 Cal.App.2d 497, 501, 16 Cal.Rptr. 107.)
It is clear from what has been said that Campbell was a vital witness for Haley. It was established on cross, that Campbell was a ‘long time acquaintance, not entirely a business associate’ of Haley and that from ‘about 1947 to something like 1950 * * *’ Campbell had a desk in Haley's office. Appellants asked further on cross-examination: ‘And you knew him for a considerable number of years prior to that, did you not?’
An objection that the question was ‘improper cross-examination’ was sustained.
This ruling was prejudicially erroneous. On the facts of this case the precise type of the relationship between Campbell and Haley, the length thereof, and the transactions in which both had been or were involved, were of material and relevant importance to show the bias and prejudice of the witness. (People v. Krug, 10 Cal.App.2d 172, 176, 51 P.2d 445; Moniz v. Bettencourt, 24 Cal.App.2d 718, 724, 76 P.2d 535; People v. Lindsey, 90 Cal.App.2d 558, 565, 203 P.2d 572; Witkin, Calif.Evid. p. 690.)
In preparation for the trial, appellants had taken the deposition of Haley's wife, Mary Grant Haley. The record shows that efforts to avoid the taking of Mrs. Haley's deposition were made on the ground that she was too ill to have her deposition taken, which efforts were successful until appellants requested that the court appoint an independent physician to make an examination of Mrs. Haley. This was done. The opinion of the court-appointed physician was that Mrs. Haley's deposition could be taken at her home without injury to her health. It was taken.
At the trial appellants made an effort to call Mrs. Haley as a witness. At least 16 pages of transcript were spent in determining whether or not appellants should insist on their right to have Mrs. Haley present in person to testify. The trial judge took the position that since Haley's counsel had represented to the court that Mrs. Haley was too ill to come to court, appellants were spoilsports not to accept such representation, even though the record of appellants' previous experience in respect of the deposition of Mrs. Haley was recounted to the court. Typical of remarks made by the trial judge are ‘Now, I am not going to order her here’; ‘Mr. Blumberg is in the position now of wanting to take her deposition and not wishing it to be read’; ‘The Court will reluctantly submit or request that Mrs. Haley submit to another physical examination, if it can be arranged, to accommodate your objection.’ Finally, the court agreed to appoint a doctor for the purpose of making an examination and indicated to counsel, after a long harangue in which the trial judge made it clear that counsel and insisting upon a right with which the court was not in sympathy, and that appellants were uselessly prolonging the trial. After this judicial admonition noon recess was taken. On return to court, the trial judge again harangued counsel on the futility of calling in Mrs. Haley when apparently under item (3) of Section 2016 of the Code of Civil Procedure, the deposition of Mrs. Haley could be read in lieu of her personal appearance. The court concluded in these words:
‘* * *
‘So whatever you do is a matter of your own choice and you accept the position voluntarily—I mean the choice voluntarily, without any feeling that it should be done otherwise.’
When the court had completed its statement, appellants' counsel said that he had hesitated to interrupt the court, but that he wanted to say that he and Mr. O'Connor ‘* * * actually resolved our differences on the matter and we will waive that examination and permit the reading of the deposition, * * *’ whereupon Mary Grant Haley, under the stipulation, appeared as a witness by deposition and not in person.
It appears from a reading of the record that the conduct of the trial judge in respect of appellants' desire to have Mary Grant Haley testify in person, was such that appellants were forced to waive their undoubted right to Mrs. Haley's personal appearance by a form of judicial duress.
In our opinion, the record shows that the trial judge's continued statements to the effect that appellants should be satisfied with the deposition of Mrs. Haley, was misconduct which prevented appellants from having a fair trial. (Gay v. Torrance, 145 Cal. 144, 148, 78 P. 540; Pratt v. Pratt, 141 Cal. 247, 251, 74 P. 742; McVey v. McVey, 132 Cal.App.2d 120, 123, 281 P.2d 898; Shippy v. Peninsula Rapid Transit Co., 197 Cal. 290, 295, 240 P. 785.)
No rule of evidence is more thoroughly accepted in courts of law and in the market place than the rule that the physical person of a witness, his manner, his voice, and the various intangible elements that can be gained from even slight idiosyncrasies of a witness, are evidence. (Auschwitz v. Wabash Ry. Co., 346 Ill. 190, 178 N.E. 403, 410.) In fact, one of the prime reasons for the rule that the trial judge is the final arbiter of the conflict where there is substantial evidence on either side, is the fact that the trial judge has the witnesses before him in person. (Maslow v. Maslow, 117 Cal.App.2d 237, 243, 255 P.2d 65; Cummings v. Kendall, 41 Cal.App.2d 549, 555, 107 P.2d 282.)
Over appellants' objection, Haley was allowed to introduce evidence relating to the cremation and disposition of the remains of decedent. The evidence consisted of the following showing:
Remains were in a cardboard box;
$35 was the cost of cremation;
No additional urn was purchased for ashes;
Testimony of mortician that the remains of decedent were not specially arranged for a public display;
A religious service was not read over the body of decedent.
Also, over objection, the will of decedent was placed in evidence, and specific attention called to Paragraph I thereof which provided in effect that decedent be buried with due regard for her station in life and the circumstances of her estate.
This evidence was apparently introduced on the theory that Frederick Friedman, the executor of decedent's estate and one of the appellants, was charged with the responsibility of following out the wishes of decedent as expressed in her will, that he did not do so, and that therefore it disclosed Frederick's disinterest in his grandmother during her lifetime. Frederick, in explanation, testified that he permitted Grace Stine, the estranged daughter of decedent (his aunt) who, like decedent, was a devout adherent of the Christian Science faith, to make the funeral arrangements for her deceased mother, because she requested that she be permitted to do so, and that the daughter made those arrangements in accordance with the Christian Science beliefs of the mother and the daughter. Frederick testified that Christian Science was not his religious affiliation or any part of his philosophy and that his grandmother's belief in Christian Science was ‘* * * [v]ery strong, very devoted Christian Science.’ He said that on the night of decedent's death ‘* * * the question was brought up and Grace said that she had arranged with a funeral home in Glendale to come and pick up Grandmother's remains, and I said, ‘Well then, you are going to take care of the funeral?’
‘She says, ‘By all means.’ She says, ‘After all, it is my mother.’
‘And I said, ‘Well, I suppose then we'll have a Christian Science funeral.’
‘And she says, ‘By all means.’
‘Nothing was said on the Christian Science religion that night. When I talked to Grace the next morning, nothing had been scheduled yet, and again I told her at that particular time to make sure that Grandmother had her Eastern Star dress on. It was most important to Grandmother in her discussions with me, the very few times that she ever discussed the funeral situation with me.
‘As far as discussing Christian Science with Grace, I had very little discussion with her about it because I always figured that she was a devout Christian Science and she knew what to do.’
In our opinion, the admission of the evidence in respect of cremation was completely immaterial. Its relevancy, if material, would be limited only to the state of mind of Frederick at the time he, as executor of decedent's estate, gave his aunt permission to make funeral arrangements and was certainly no evidence of decedent's feeling toward Frederick during decedent's lifetime or in respect of her grandchildren at the time she made her will, or at the time she handed Exhibit I to Haley. By no stretch of the imagination could it be evidence against the two other appellants.
It seems irrefutable that the testimony in respect of funeral arrangements excerpted above was pivotal in impelling the court to find that appellants did not love their grandmother. Thus, immediately before announcing his decision from the bench, the trial judge said:
‘The Court mourns with the spirit of Anna A. Friedman, hovering amongst the ashes in the cardboard box, over the failure of the grandchildren, her grandchildren, to arrange that her body be buried with due regard to her station in life and the circumstances of her estate.’
In an attempt to refute said conclusion which had been previously indicated, questions were asked of Frederick as to his state of mind upon decedent's death and his feeling toward decedent. Objections to these questions were sustained and evidence thereof excluded.
There is no substantial support in the evidence for the statement that the grandchildren did not exercise consideration and love in disposing of the remains of their grandmother. The finding is rejected.
We consider it unnecessary to determine whether there was a delivery of Exhibit I.
The judgment is reversed, and the cause is remanded to the trial court with directions to enter judgment in favor of appellants.
1. The confidential nature of the relationship is almost demonstrated by the following excerpts of some of the testimony out of Haley's mouth: ‘* * * [S]everal times I showed her * * * the supermarket at Western and Vernon. * * * [A]lso the property on Wilshire Boulevard a building I put up there. It is near St. Andrews, * * *. ‘* * *. ‘Q Did she rely on you to give her values and help her with real estate transactions? ‘A To a certain extent. ‘Q Did you give her any help with respect to her properties? ‘A Yes, I think I did. ‘Q You think you did or do you know that you did or did not? ‘A I think I did. ‘* * *. ‘Q Now, what kind of help did you give her in connection with her properties? ‘A Well, advice, * * *. There's so many different things came up. There's repairs; there's purchase of property; * * * everything. ‘* * *. ‘Q Now, you say you gave her advice in connection with her properties? ‘A Yes. ‘Q Did you just give her advice all the time, * * *. ‘A Well, we'd get together in her house and discuss it, * * *. ‘* * *. ‘Q Now, you gave her some advice in connection with the condemnation of her Bunker Hills property, * * *? ‘A Well, I think I expressed an opinion, yes. ‘* * *. ‘Q And both of these properties were owned by her, isn't that right? [Reference was to the Bunker Hill property and the Lord Street property which were being condemned.] ‘A That is true. ‘Q Now, you stated that Joe Thompson had something to do with the Lord Street property. ‘A Well, I think that she expressed that he was the agent. ‘* * *. ‘A * * * [B]ut he didn't do very much about it, * * * when he got to drinking there, * * * she asked me if I wouldn't, * * * investigate it, * * *. * * * [B]efore I had the interview with the State Highway. ‘* * *. ‘Q * * * Now how much had she been offered for that property * * *? ‘A * * *, I think it was $44,000. ‘* * *. ‘A * * * I think she told me, * * * what she was offered. ‘* * *. ‘A [S]o I told her and * * * Thompson, * * * ‘I can give you a little bit of advice, Thompson, * * * the County will have efficient appraisers * * * the only way that you can meet your opposition would be to associate yourself with an appraiser.’ ‘* * *. ‘Q Did she need an agent to sell that to the County? ‘A I don't think she did. ‘Q But she appointed you as her agent, did she not? ‘A She certainly did not. I never in my life acted as her agent. I was always just simply as a friend, a good, close friend and just a confidential friend; that is all. ‘Q * * * Did she appoint Thompson as her agent? ‘A Yes. I mean she'd already had him. * * * ‘* * *. ‘Q Now, was there ever any agreement between you * * * to be compensated for this work * * *? ‘A No, sir, never at any time. * * * ‘Q I am referring, of course, to the work which you were undertaking to do for her in connection with Bunker Hill. ‘A Yes, sir, you can refer to all—for the years that I have ever known her, she has never paid me a dollar for any consideration like that and I have never at any time subjected myself in that capacity as an agent to her. Anything I did for her was just like I was doing it for my mother, and I just took great pleasure in doing it because I loved to. ‘Q And is that why you added $50 to the $50 that she paid to Mrs. Holman * * *? ‘A That was just a generous gift, yes. ‘* * *. ‘A Yes, Yeah, you brought it up yesterday. I'd forgotten about it, but you brought it up yesterday.’ In connection with the condemnation sales and the collection and commission therefor, it is of importance to note that the evidence showed without contradiction that Haley's own real estate license had been revoked in February, 1955, for clouding the title of some other woman's real property and that his broker's license was not restored until after decedent's death. Haley testified that he had never given any receipts to decedent for money in connection with the condemnation transaction or any other transactions, saying ‘I wouldn't give her a receipt and she wouldn't give me one. I don't want one and she wouldn't expect one.’ It was established that decedent paid full 5% commission on both condemnation transactions, and, among other things, Haley was shown a receipt in respect of the Lord Street property which recited in effect that it was for 5% of $25,000, or a total of $1,250. The evidence showed without contradiction that the $1,250 was handed to Haley in three checks, one cash check for $250, a second cash check for $150 and a check for $850 made to John Otis Haley. The receipt recited ‘Received the above amounts from Mrs. Anna Friedman for services rendered—on the property located at 763 Lord Street, Los Angeles.’ It was signed ‘John Otis Haley’ and was admitted in evidence as Defendant's Exhibit ‘H’. In connection with the Bunker Hill property, Haley was shown a check dated February 11, 1956, payable to John Otis Haley, for $1,062.50, signed by decedent, marked ‘Payment in full’. This check, together with others, totaled the full 5% for the price received in condemnation on the Bunker Hill property and in respect thereof Haley testified ‘* * * This is a new one on me because I don't remember that.’ Haley was shown a second receipt, the upper part of which he identified as his handwriting. It was dated January 6, 1956, and among other things, recited that one Joe A. Thompson received $475.00 ‘* * * as part payment * * * for services rendered for the sale of the property at the southeast corner of Court Street.’ Haley identified the signature of Joe E. Thompson, and his attention was called to a record in the right-hand corner which read: ‘Paid Mr. John O. Haley, $950.00 November 23, '55, services rendered for the sale property corner of Hope and Court Streets.’ Haley replied: ‘A That's right, that accounts for this check. Those are the two checks.’ The witness was then asked whether the receipts were in his handwriting and he answered ‘Yes.’ Haley was then shown two other receipts, each dated February 11, 1956, and each signed by John Otis Haley, which were received in evidence as Exhibit ‘I’, indicating a total received by him of $2,987.50, exactly 5% of $59,750 received as the condemnation price for the Bunker Hill property, which receipts showed that John Otis Haley received $1,162.50 for himself and three other separate checks, two several checks to Thompson, one for $400 and one for $475, and a third check for $950. It was then developed that all four checks found their way into the personal bank account of John Otis Haley at the Canadian Bank of Commerce. It was further developed (Exhibit ‘K’) that Haley undertaking to represent decedent, wrote a letter to Mr. Jennings, connected with the Division of Highways of the State of California. Said letter is as follows: ‘Los Angeles (38) California December–12th–1955‘Mr. Leland C. JenningsDivision of Highways120—South Spring StreetLos Angeles (12) California‘Dear Mr. Jennings:—— ‘Herewith please find enclosed ‘GRANT DEED’ from Anna A. Friedman—to—State of California—coveing Lot- (23), Block-(15), Brooklyn Tract, also original and two copies of ‘RIGHT-of-WAY CONTRACT—STATE HIGHWAY which are self explanatory. ‘In accordance to a title report this property is free and clear of all encumberances except—second one-half taxes as mentioned on the deed. ‘These papers are being sent you in register mail with return report which will answer as a receipt of same. ‘In the event additional information is desired please contact the undersigned and all maters will be adjusted. Very kindest regards (signed) John Otis Haley'P.S.A dress all communicationsto—John Otis Haley#149—N. Las Palmas AveLos Angeles (4) CaliforniaPhone- WE- 47101' On cross-examination, Haley testified that his visits at decedent's home were ‘Not too much at her house * * *. She used to come to the office there. We used to go out to lunch and we used to look at properties, and everything.’ He said he could not recall how many times he saw her in 1954 or between 1955 and the date of her death, and that he was never accompanied by his wife when he visited decedent at her home from the time he first met decedent until the day she died. Further, he stated that he abandoned his real estate office in 1953 or 1954 and that he was a real estate broker and had been in the real estate business since 1912, and that he had also been in the oil business. He further testified that during 1955 and 1957 he made approximately 90 business visits to decedent. He was asked whether he could recall any of the business that he conducted with her in the 90 visits. He recalled one occasion when he and decedent went to look at ‘* * * the apartment house up near Vermont and Los Feliz that was submitted to her by some member of her family * * *’ which he advised her not to buy. The reporter's transcript and the exhibits are replete with evidence other than such as has been pointed out showing the confidential nature of the relationship between Haley and decedent to and including the date on which Exhibit I was handed to Haley. Thus Exhibit ‘T’ shows that Haley on July 29, 1957, a few days prior to August 4, when he received Exhibit ‘I’, entered into a contract with Boeck Paving Co. to have $125 worth of paving work done on Haley's property at 17th and Bristol Street in Santa Ana; that the contract signed is in Haley's writing, ‘Anna A. Friedman by John Otis Haley’, but that the same is billed to Anna A. Friedman at 5808 Camerford Avenue, Los Angeles 38, decedent's home, and was actually presented or mailed to decedent on August 2, 1957, the day upon which she is alleged to have signed Exhibit ‘I’. Haley testified that in 1956 at decedent's suggestion, in order to deceive public authorities as to the value of the above property, he executed a deed in favor of decedent covering a portion of the street on the Santa Ana property described above, whereupon decedent concurrently executed a $35,000 mortgage in favor of Haley upon the property thus conveyed. Haley then recorded both documents. The record also established that in 1956 Haley persuaded decedent to act as his personal surety on a bond to stay the execution of a judgment obtained in some lawsuit against Haley. The record also showed that as late as approximately July, 1957, Haley received certain documents from decedent to enable him to act for her in respect of a proposed sale of her San Pedro property and that ‘* * * she just left it to Haley, thinking he would do that for her. * * *’
2. ‘Q Now you mentioned that Anna Friedman was not pleased with having to pay Mr. Haley a second commission on Bunker Hill. ‘A That's right, she felt that she had paid him plenty. ‘Q Did she ever mention how much? ‘A Five per cent. ‘Q Did she ever say how much she paid him over and above the five per cent commission she paid him originally? ‘A She said that she'd paid him plenty. She never gave the amount. ‘Q Well, what did that mean to you, that she paid him more than the five per cent? ‘A No, she paid the exact amount, as near as I could tell, and when he come back to ask for more, she didn't like for him to ask the second time for a commission. ‘Q Did she tell you how much more he asked for? ‘A He said he owed another fellow his share and he didn't have any money to pay him. He said he was hard up. ‘Q Hard up? ‘A That—Mrs. Friedman said to me Haley always said that he was hard up with her because he had three women to keep. She told me that. ‘Q She believed that he was a man of no financial means? ‘A No, she didn't say that. ‘Q But she said he was a man that was always hard up for money? ‘A That was her opinion, yes. ‘Q Did she say that in the Bunker Hill and the Lord Street transaction he was her real estate broker? ‘A No. ‘Q Did she say that he was her real estate agent? ‘A No. ‘Q Did she ever tell you that he had a real estate license to practice in representing her in the transactions? ‘A No, she never mentioned that. She never referred to him as an agent. ‘* * *. ‘Q All right, but she did repose a great deal of faith and confidence in you? ‘A No more than any member will. She had confidence in me and I had it in her. ‘Q But she had none in Mr. Haley? ‘A She enjoyed it when he'd take her places. Sure, she enjoyed that, but she felt that she'd already paid him plenty commission. ‘She didn't owe him a thing for that because he always said, ‘I am going a certain place. Come and go with me.’ ‘Q My question is: Because of that attempt to get a second commission when she had paid him the 5 per cent, she did not trust him? ‘A Now the question again, please? ‘Q She told you because of his attempt to get paid more than the five per cent commission, that she had no trust in him? ‘A No, that isn't what she said. She said, ‘I don't understand Mr. Haley, after me paying the right commission, then to come back and want more commission.’ That is what she told me.'
3. Ceda Luella Anderson testified she saw Anna A. Friedman writing the deed in longhand. ‘She asked me to call Mr. David H. Campbell and tell him she had some business for him, to call him. She did.’ ‘He arrived about a half-hour after I had called him.’ ‘She said, ‘I suppose you wonder why I am calling you at this time.’ And he said, ‘No, I suppose it is something about income tax; the government wants to know some questions about income tax.’ And she said, ‘No, it isn't that,’ and she said, ‘You know Mr. Haley, don't you?’ And Mr. Campbell said, ‘Yes.’ And she said, ‘what do you think of him?’ And he said, ‘Well, I think he is a very fine person.’ And Mrs. Friedman said, ‘Well, I do too. I just think an awful lot of him.’ And she said, ‘Sit down by my side.’ She was sitting on the davenport and she said, ‘I am making out a Deed to some properties to him and I have it in my own handwriting, and my handwriting isn't very good, so I wish you would type it up for me.’ And she handed it to him and she said, ‘I want it typed,’ and with that she handed him some paper——'. ‘The following day he brought it back. She looked it over very carefully and said, ‘Yes, that it (sic) just what I want.’' ‘She said, ‘I am going to sign this Deed and I want you and Miss Anderson to be witnesses to my signature.’' ‘She saw Anna A. Friedman sign.’ ‘She passed it to Mr. Campbell. He signed it.’ ‘He passed it to me and I signed.’ ‘She was present when Anna A. Friedman delivered Deed to John Otis Haly.’ ‘This was on August 4, 1957, when Mrs. Friedman, Mr. Haley and she were there.’ ‘Anna A. Friedman said, ‘John, here is the surprise I had for you that I told you about yesterday,’ and she handed the Deed over to Mr. Haley.' ‘She said she loved Mr. Haley. She wanted to give him some of her properties and was making the Deed to him for those properties.’ (Respondent's Brief.) In addition to said summary by respondent, it should be noted Anderson also testified: ‘She said she thought more of him than she did of her family; that he had done more for her; he'd been a wise counselor and given her much good advice; that he had taken her very many places and done lots of nice things for her and had made life worth living. ‘* * *. ‘A * * * He took the Deed in his hand and looked it over and he said, ‘Well,’ he said, ‘Anna, you did what you said you were going to do.’ ‘He said, ‘This is certainly a surprise,’ and he said, ‘I don't know how I can thank you for it.’ And he reached over and kissed her on the cheek. ‘And she said, ‘Yes, but you will notice that I reserved a life estate in that.’ ‘And he said, ‘Well, that is what I want you to do, naturally.’ And he said, ‘The only thing I can say is that I'll look after you the rest of your life,’ and he said, ‘I just can't tell you how much I appreciate it.’ ‘And she said, ‘Well, I wanted to do this for you,’ and ‘You take that and keep it for a long time to come, but’ she said, ‘after I am better, feel well enough, we'll take it down and get it notarized and recorded for you.’ ‘Q Was any mention made of any of her relatives at that time? ‘A Yes. She said, ‘John, you know I think more of you than I think of my relatives who do nothing for me.’ She said, ‘I never see my grandchildren. I see Frederick once in a while when I ask him to come, but I never see the rest of my family.’ She said, ‘I haven't seen my daughter for 15 years.’ ‘* * *. ‘A She began to write out the papers and told me that she was making a Deed to Mr. Haley for some of her properties, and she said, ‘I suppose you think it is funny that I am doing this.’ ‘And I said, ‘No, I don't think it is funny. Why should I think it is funny? It is your business.’ ‘And she said, ‘Well, sit down and I'll tell you why I am doing it.’ And she told me of her lack of attention from her family and she told me of the many things she had done for her family. ‘Q Did she tell you what she had done for her family at that time? ‘A Yes, she told me that she had given her daughter an orange grove, and she told me that she had given her grandson a house in Long Beach, and she said, ‘If I should die today, Frederick would have over $100,000.’ And she said, ‘I have given my granddaughters—I have put money in the bank in joint account for my granddaughters.’ And she said, ‘I think I have done enough for my family. I have left them plenty and they haven't done anything for me and,’ she said, ‘Mr. Haley has.’ ‘And she told me the many nice things that Mr. Haley had done for her, and she says, ‘Now you can understand why I want to do something nice for Mr. Haley.’ ‘* * *. ‘Q And did you expect from the conversations that you had with her that she was going to leave you some handsome bequest from her estate? ‘A Mrs. Friedman told me that she had made a codicil to her Will, leaving me an inheritance. ‘Q She didn't lead you to believe that that was just going to be some token inheritance, did she? ‘A When a person speaks of an inheritance, I don't think they speak of a token. ‘Q Actually, you have not received any inheritance from her, have you? ‘A I have not been notified of such an inheritance. I asked you about it in the deposition and you refused to answer me, so I don't know whether there is a codicil, whether it has been destroyed, or whether it has just been ignored. ‘Q And you have that feeling that apparently there was a codicil which has been surreptitiously destroyed, don't you? ‘A I believe there was a codicil. Whether it has been destroyed or not come to light, I wouldn't say. ‘Q But you feel that there has been a codicil in which you were mentioned by way of a substantial bequest, isn't that correct? ‘A I don't know that I should say ‘substantial.’ I can only say that she said she was leaving me an inheritance. ‘* * *. ‘And she was sitting with her arms on her knees and her head cradled in her hands, in this manner (indicating), and she said, ‘Because I have fixed that. I have made a codicil to my Will in which I am leaving you an inheritance,’ and I was mightily surprised. ‘Q Were you pleased? ‘A Naturally. ‘Q And when did that conversation take place, Miss Anderson? ‘A About two weeks prior to her death. ‘Q And that was after she had delivered a Deed in your presence to Mr. Haley? ‘A Yes. ‘* * *. ‘Q And did you tell that to Mr. Haley at any time? ‘A I think I did.’
4. Reference is made to Campbell's testimony already summarized, Anderson's testimony in footnote 3, Mrs. Haley's testimony in footnote 5. The testimony of other witnesses throwing light on the nature of the transaction is substantially as follows: Mary Margaret Scott, a sister of Anderson, who recommended Anderson for employment as a companion to decedent, testified she was a next door neighbor of Anna A. Friedman since November 1949 and knew her very well. She and Anna A. Friedman were very close friends. Prior to her death and after August 4, 1957, Mrs. Friedman said ‘I gave, deeded Mr. Haley some of my properties.’ He was ‘one of the nicest men she had ever met—she was very much in love with him——’. She also testified after having first denied that she hoped her sister Ceda Anderson would be remembered in decedent's will ‘I was more or less disappointed, as Anna A. Friedman had said there would be a codicil to the Will, leaving my sister some inheritance.’ Caroyln Holman, known to the Haleys for 35 years, is a sister of Mrs. Haley's sister-in-law. She first met decedent in August, 1955. She denied having any business transaction with decedent in 1955 or receiving any money from decedent in that year, but when shown a check for $50, made to Mrs. Carolyn Holman signed by Anna A. Friedman, marked ‘Payment in full for all services rendered,’ and the endorsement in her own handwriting below ‘Small compensation. Cashed under protest,’ recognized the check, her signature, and ended up by answering: ‘Well, it was just, as I say, as a gift; but, as I recall, I do not recall it, unless it was something in an emergency, but it was not for any—it states, ‘Small compensation,’ but she never gave me any gifts of any kind.' Mrs. Holman also admitted that on February 14, 1956, she addressed a letter to decedent which was introduced as Exhibit ‘E’, the substance of which was: ‘This letter is to acknowledge a check from you in the sum of $50.00 in payment for the consideration of me accompanying you on your business visit to the County of Los Angeles Purchasing Department. Also a check from John Otis Haley [respondent] for the sum of $50.00—total of $100.00.’ The record shows that at Haley's suggestion decedent took Mrs. Holman with her to the State appraiser who fixed the value upon the Bunker Hill property. As a result of this visit the price was raised $750.00. Mrs. Holman apparently felt that the $50.00 paid her by decedent was insufficient, whereupon Haley snet her an additional $50.00. In respect of this witness, she denied borrowing any money from respondent and it was developed that she borrowed $850.00 from respondent giving a chattel mortgage on her automobile. She was shown a certified copy of a promissory note and a mortgage of chattels and the testimony then proceeded as follows: ‘Q Is this your signature? ‘A Yes, it is. ‘Q At the bottom?‘A Yes, it is, but it was never consummated.’ On redirect the same witness testified: ‘Q Now, this chattel mortgage that Mr. Blumberg has inquired about, April 17th of 1958, you say that Mr. Haley never loaned you the $850? ‘A He never did; never. ‘Q You got that money from Mr. Holman's son? ‘A Yes. ‘* * *. ‘THE COURT: The objection is overruled. ‘By way of explanation here, the Court is interested in knowing—we just don't allow part of the evidence in and then exclude the other. It must go in, in context.’ Further, on redirect, this witness testified: ‘Q Now, did you know that this Chattel Mortgage was recorded? Just yes or no. ‘A Yes. ‘Q Was there a Note that you recall signing that was separate and apart from this Chattel Mortgage for $850, payable to Mr. John Otis Haley? ‘A Not that I recall. ‘Q Now, I ask you to let us assume that you did get, just for the purpose of the question—that you had received an $850 loan from Mr. Haley; would that influence you to testify falsely? ‘A Never. ‘* * *. ‘MR. BLUMBERG: I * * * object * * * speculative and calling for a conclusion of this witness. ‘THE COURT: The objection is overruled. ‘Q BY MR. O'CONNOR: Now, the letter that has been introduced indicates that you got $50 from Mrs. Anna A. Friedman and $50 from John Otis Haley. Is that the faet? ‘A Well, it must have been if it is in writing, but I do not recall that. ‘Q Would the receipt of this money, assuming you received the $100, would that have caused you to be prejudiced and biased in favor of Mr. Haley in this matter? ‘A Never. ‘MR. BLUMBERG: * * * object * * * on the same ground as previously, * * *? ‘THE COURT: * * *. The objection is overruled.’
5. Mr. Haley testified in part: ‘Q. Did your husband ever tell you how much he paid Mrs. Friedman for that Grant Deed? ‘A He didn't pay her anything. ‘Q Is that what he told you? ‘A Yes. ‘Q He said he had not paid her anything? ‘A No. ‘Q Isn't that what he told you? ‘A He didn't say he had paid anything or that he didn't. ‘Q I see. ‘A He just said it was a gift.’
6. ‘Now I pass to the matter of valuable consideration. John Otis Haley paid Anna A. Friedman valuable consideration for said Grant Deed, (1) in the form of cash, $10, * * *. ‘(2) His promise to support her for the rest of her life; ‘(3) Valuable service consisting of (a) in 1955 securing for her $14,750 additional to the offer of the County of Los Angeles of $45,000 as the fair market value of the Bunker Hill property, or for a total increase in the price to $59,750; (b) with reference to the sale of the Lord Street property in securing for Anna A. Friedman $7,000 additional to the offer of the County of Los Angeles of $18,000 as the fair market value of that Lord Street property, for a total increased price of $25,000; and this transaction was in 1955; (c) Anna A. Friedman wanted to purchase apartments in Los Feliz for the sum of $65,000. John Otis Haley investigated and found that the total cost of all labor and materials invested in said apartments did not exceed $35,000 and advised Anna A. Friedman that a profit of some $30,000 on that investment was exorbitant. Anna A. Friedman did not make that purchase and I submit that meant a conservative saving to her of at least $10,000. This transaction was in 1956.’ Further along in his argument counsel for Haley urged: ‘* * * I submit that it is without contradiction, is that she was lonely, she received no love, respect or affection from her grandchildren, and she found some warmth and happiness in her relationship with John Otis Haley. ‘I think it gave her pride and a feeling of prestige and flattery when he would take her on these trips to visit her own blood kin at Garden Grove; and if she desired to make him a grantee of some of her properties, did she not have that right?’
7. ‘That it is true that JOHN OTIS HALEY paid ANNA A. FRIEDMAN valuable consideration for said grant deed, to-wit, Ten Dollars ($10.00) cash and a promise to support her for the rest of her life; services in 1955 which secured for ANNA A. FRIEDMAN Fourteen Thousand, Seven Hundred and Fifty Dollars ($14,750.00) additional to the offer of the County of Los Angeles of Forty-Five Thousand ($45,000.00) as the fair market value of the Bunker Hill property, then owned by said ANNA A. FRIEDMAN, for a total increased price of Fifty-Nine Thousand, Seven Hundred and Fifty Dollars ($59,750.00), together with securing Seven Thousand ($7,000.00) Dollars additional on the sale of the Lord Street property for ANNA A. FRIEDMAN from the State of California; that it is true that said services were rendered gratuitously by JOHN OTIS HALEY for the benefit of ANNA A. FRIEDMAN.’
6. See footnote 6, ante.
7. See footnote 7, ante.
8. Anderson testified: ‘Q All right. Do you recall the occasion when you signed it as a witness, at the bottom, on the second time? ‘A I do. ‘Q And can you tell the Court when that occurred? ‘A Yes, it occurred on October 4, 1957. ‘Q Now where did it occur? ‘A In the Notary Public's office, Anna Hayden, on Western Avenue. ‘Q And how did you get there? ‘A Mr. Haley called me up and asked if I would go down and notarize the Deed with him, and I said I'd be glad to, and he came over. ‘Q And you and Mr. Haley were the only ones present at that occasion outside of the Notary, Mrs. Hayden? ‘A There were other people in Mrs. Hayden's office. I think her husband was there. We visited a few minutes first. ‘Q Is that the first occasion that you have ever met Mrs. Hayden, the Notary? ‘A It is. ‘Q Or her husband? ‘A It is. ‘Q Well, just tell the Court what you recall of that matter. ‘A Mr. Haley told Mrs. Hayden that he had a Deed that he would like to have her acknowledge, and he told Mrs. Hayden that Mrs. Friedman had died and that I was one of the witnesses to the signature of her Will, and—— ‘Q Of her Will? ‘A I don't mean her Will. I mean of this Deed; I'm sorry. ‘And she asked me—she swore me in and asked me if I had seen Mrs. Friedman sign the Deed, and I said I had, and she said, ‘Is this your signature?’ ‘And I said, ‘It is.’ ‘And she said, ‘Would you sign your name again so that I can compare the signatures?’ ‘And I said, ‘Yes, indeed I would.’ ‘So she gave me her pen and I signed it the second time. I signed this Grant Deed the second time. ‘Q That is the bottom signature on the left-hand side of the document? ‘A That is the bottom signature. ‘Q I see. Did you write anything else? ‘A I did not. ‘Q Just yes or no. ‘A No. ‘Q All right. Who wrote, ‘Witness' under your second signature? ‘A Mrs. Hayden wrote it. ‘Q And then what occurred? Just tell the Court what transpired. ‘A Well, Mr. Haley paid Mrs. Hayden for the services and first she—I am getting a little ahead of my story. ‘She took this little document and signed it, and then she clamped it onto the Deed and then took her seal and pressed it through both this document and the Deed. ‘Q Indicating ‘this document,’ as the acknowledgement that Mrs. Hayden had signed, and the document itself? ‘A That's right. ‘Q Bearing Anna A. Friedman's signature and your signature, and Mr. Campbell's signature, is that correct? ‘A That is right. ‘Q All right. Then what did Mrs. Hayden do with the document? ‘A She handed it back to Mr. Haley. ‘Q I see. And was that the end of that transaction, so far as you recall?’
6. See footnote 6, ante.
7. See footnote 7, ante.
9. The uncontradicted testimony of Frederick is in part: ‘Q * * * With respect to your grandmother's physical condition, can you state whether or not you were personally concerned with this during the last three or four months of her life? ‘A Very much so. ‘Q And as a result of that concern did you have any discussions with her about doing something about that physical condition? ‘A Many, many times. ‘* * *. ‘Q What did you tell her about getting medical help? ‘A Well, I asked her on several occasions prior to her death if she wouldn't let me get her some oxygen. She said, no, that she always was of the opinion that she just had a bad cold, or the smog was bothering her, or some respect to that, and she wouldn't have anything to do with it. ‘And I said, well, especially the week prior to her death, I begged her to let me get a tank of oxygen over to the house so she could take a sniff of it whenever she needed it, and this she would not do under any circumstances. ‘The day before her death I just practically got on my knees and begged her to let me get her a tank of oxygen, * * *.’ ‘* * *. ‘Q And when did you make those suggestions to her at first? ‘A Oh, I would say a week before her death. ‘* * *. ‘q Did you make any further similar suggestions thereafter, prior to her death? ‘A Yes. ‘Q I take it that she resisted your efforts to obtain such help for her? ‘A Yes.’
HERNDON, Acting P. J., and ASHBURN, J.,* concur.