IN RE: LEAHY'S ESTATE.* (1935)

This is an appeal by the contestant of the will of Ella A. Leahy from a judgment notwithstanding the verdict after the court had denied respondents' motion for a directed verdict.

In September, 1930, deceased made a will in which, after making various specific bequests, she divided her property evenly between her two sisters, Mary Cornyn and Anna Dixon. On April 26, 1932, she executed a codicil to this will, changing certain legacies, but leaving the will materially the same. On June 24, 1932, she executed a will whereby $500 was left to Anna Dixon, the contestant and appellant, and, after a number of small bequests, the remainder was left to Mary Cornyn, the proponent herein. Harry Cornyn, the latter's son, was named executor. These two we refer to herein as respondents, as the other named parties are not actively participating in the contest.

When an appeal is taken from a judgment notwithstanding the verdict, all the evidence, including the presumptions and inferences, must be taken most favorably for the appellant, because the power of the court to enter such a judgment, like the power to direct a verdict, is the same as the right to grant a nonsuit. In re Estate of Lances, 216 Cal. 397, 400, 401, 14 P. (2d) 768. Viewing the evidence in the light of this rule, it appears that for several months before the will was executed the decedent was in a hopeless physical condition; that her mental condition was so weak because of this ailment that she became easily susceptible to a subversion of her will; that the respondents took her under their exclusive control, barring her sister from visting her; that during this time they obtained from the decedent large sums in cash and deeds to real property, and bills of sale of personal property, without any consideration; that the will attacked was at variance with the decedent's expressed testamentary intentions; that the respondents were active in procuring the excution of the will. It is a matter of significance that the contestant called to see her sister on June 24, 1932, but that the respondents denied her admission. At that time Mary Cornyn told the witness that Ella Leahy was losing her mind. This was the day on which the decedent executed a deed to real property in San Francisco, a bill of sale of certain personal property, an affidavit concerning her title and interest in a large assortment of personal property, and the contested will. During the day an attorney summoned by the respondents was in the house for two hours, the respondents were in and out of the bedroom throughout the day, and a notary was present with the attorney when these documents were executed.

In April, 1932, Ella Leahy was very ill with cancer. There is a conflict in the evidence as to whether or not she was mentally competent to carry on her own affairs from this time up until her death on August 1, 1932. Appellant contends that undue influence was used by Harry Cornyn and his mother in the execution of the last will and also in the drawing of a quitclaim deed to some San Francisco property in which Mary Cornyn was named grantee, and a deed of trust to Harry Cornyn. She also showed that a large number of checks, amounting to $5,000, were drawn between January and July, 1932, by the deceased in Harry Cornyn's favor. There were also other large amounts made out to Mary Cornyn, and in January, 1932, deceased paid $3,000 and obtained the assignment to her of a trust deed on Mary Cornyn's home which she later transferred to Harry as trustee for his mother and which was to go to him on his mother's death. On July 11, 1932, at the solicitation of the respondents, she drew a check in favor of Harry Cornyn for $1,800, but was too feeble to sign it other than by her mark. The fact that the codicil drawn up in April, 1932, two months before the contested will, and while deceased was still in fairly good health, divided the property evenly between the two sisters, is said by the appellant to show that before she came under the domination of respondents the deceased desired to divide her estate equally between her sisters.

Appellant admits that there is no direct proof of actual pressure being brought to bear at the very time the will was made, but contends that the existence of confidential relationship plus other circumstances–the activity of respondents in the execution of the will, the variance of the will with the previously written will, the persistent refusal of the respondents to permit appellant to visit her sister during her last illness when respondents kept the deceased under their complete care and control–are sufficient to raise the inference of undue influence.

While none of these circumstances, taken alone, would have raised a presumption of undue influence, all taken together, in view of the weakened physical and mental condition of the decedent, would have supported an inference that undue influence was exercised. In this respect the case is directly in line with In re Estate of Nelson, 134 Cal. App. 561, 565, 25 P. (2d) 871; In re Estate of Graves, 202 Cal. 258, 262, 259 P. 935; In re Estate of Yale, 214 Cal. 115, 122, 4 P.(2d) 153; and similar cases. The question of undue influence thereupon became a question to be determined by the jury (Id.), and, if the trial judge believed that the evidence preponderated against the verdict, it was his duty to grant a new trial, but not a judgment notwithstanding the verdict. In re Estate of Lances, supra, 216 Cal. 397, page 401, 14 P.(2d) 768.

For these reasons the judgment is reversed, with directions to enter judgment in accordance with the verdict.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.