IN RE: GREEN'S ESTATE.* (1946)

This is the second appeal in the present controversy. In the first proceeding the jury returned a verdict in favor of contestant (appellant herein). Proponents' (respondents herein) motion for a judgment notwithstanding the verdict was denied but their motion for a new trial was granted. On appeal the action of the trial court was sustained (Estate of Green, 25 Cal.2d 535, 546, 154 P.2d 692). The cause was then retried and again the jury found for the contestant. Proponents again moved for a judgment notwithstanding the verdict, which motion was granted and the will admitted to probate. Contestant has again appealed, this tme contending that the verdict of the jury is supported by substantial evidence, that the doctrine of the law of the case requires a reversal of the judgment and order admitting the will to probate, and that certain errors occurring during the course of the trial likewise compel a reversal. Our examination leads us to the same conclusion as that reached by the Supreme Court in the first appeal—that the trial court was not ‘justified in * * * granting a motion for judgment notwithstanding the verdict.’ Estate of Green, supra, 25 Cal.2d at page 546, 154 P.2d at page 698.

The present record, which is substantially the same as the one on the former appeal, discloses that the testator Robert Franklin Green died August 31, 1939 at the approximate age of 7, years, leaving surviving him a wife and only child, a daughter Frankie Green Dick, the contestant and appellant herein. Immediately following his marriage he left his wife and returned to the home of his mother and from that date until his death he never lived with his wife. The contestant was born September 28, 1904. Within three weeks thereafter her father and mother executed a property settlement agreement whereby the mother released him from all claim for maintenance and support and purported to release the right of the daughter likewise. Upon the death of his mother in 1907, the decedent moved to, and thereafter until his death continued to live in, the home of a sister and brother-in-law, Loclice Maybelle and Henry F. Ellis, the parents of two of the beneficiaries named in decedent's will, Frances M. Freeman and Carrie C. Erich. Apparently three wills were executed by the testator, one dated November 30, 1928, one dated October 18, 1935, and one dated January 24, 1938. Although it is stated in appellant's opening brief that the last dated will was rejected because it was procured through the undue influence of Ellis, our examination of the record discloses nothing pertaining to said will or the alleged proceedings thereon as having been admitted in evidence (other than certain testimony received for purposes of impeachment) and that all allegations in contestant's pleadings in relation thereto were stricken by the trial court. Nothing pertaining to the 2928 will is involved herein—the present controversy relates solely to the 1935 will.

Inasmuch as on the former hearing the trial court ruled that the evidence before it was sufficient to warrant a denial of proponents' motion for a judgment notwithstanding the verdict, and on appeal the Supreme Court (at page 546 of 25 Cal.2d at page 698 of 154 P.2d) as a matter of law so decided (Wells v. Lloyd, 21 Cal.2d 452, 455, 132 P.2d 471; Berry v. Maywood Mut. Water Co. No. One, 13 Cal.2d 185, 186, 88 P.2d 705; Estate of Baird, 193 Cal. 225, 236, 223 P. 974; Herbert v. Cassinelli, 73 Cal.App.2d 277 166 P.2d 377), the first question to be considered is whether or not the evidence on which said ruling and decision were made is substantially the same as that now before us for review.

In the former trial, on the issue of undue influence, the court admitted in evidence a letter written by Henry Ellis, the brother-in-law, to one of decedent's nieces and her husband, suggesting that they induce the decedent to dispose of his property during his lifetime rather than subject it to a probable contest after his death. Initially Ellis had been made a party to these proceedings but secured his dismissal therefrom on the ground that he was not named as a beneficiary under the will. The court further ruled against the admission of any evidence to show that Ellis had been instrumental in procuring the execution of the 1938 will, mentioned above, which will previously was denied probate on the ground of undue influence exercised by him. See, 25 Cal.2d 543, 544, 154 P.2d 692.

The fact that on both trials verdicts were returned for the contestant, notwithstanding the inclusion of the Ellis letter in the evidence at the first trial and its exclusion from the evidence in the second, demonstrates that the second jury could not have considered it as a vital factor in reaching the same determination. Likewise it is apparent that in the former proceeding the letter was not deemed of controlling effect by either the trial or appellate court. To the contrary the judge in the previous trial, although admitting the letter in evidence, expressed the view in his written opinion that said letter was utterly without evidential value, and yet ruled that the evidence as a whole was such as to require a denial of the motion for judgment notwithstanding the verdict. On appeal the Supreme Court held that there was no error in such ruling in the light of the trial court's conclusion ‘as contained in the opinion rendered by him.’ In other words, as we understand the decision, the Supreme Court has in effect held that, following the opinion of the trial court and the rationale thereof and disregarding the letter altogether, the evidence as a whole was still sufficient to make improper an order for judgment notwithstanding the verdict.

The only other respect in which respondents claim the evidence on the issue of undue influence to be materially different in the present proceeding is in the matter of the testimony of contestant's mother, Rosa Green, the widow of the decedent. On the former trial Mrs. Green testified that the executor of the will, Ray E. Burson, when calling at her home the night before she signed the release affecting a parcel of property that stood in decedent's name, declared: ‘You might just as well sign; you don't get anything anyway.’ This testimony was given on the redirect examination of the witness, and was admitted on the ground that it was a declaration against interest. On the present trial the question which opened the way for such testimony was not asked and hence the testimony was not given.

It is difficult to see how the absence of this testimony could have affected the issues involved herein. There was no claim made, nor was the jury on either trial given to believe, that the executor was guilty of exercising under influence over Mrs. Green or her daughter, contestant herein. Neither was this testimony essential on the question of knowledge, for in both trials it appeared that Burson had witnessed the 1928 will in which no provision was made for either Mrs. Green or her daughter and that the will now in controversy was substantially the same in these respects as said prior will. Likewise in both trials Burson testified that as late as 1933 he discussed with the decedent matters pertaining to the latter's affairs and property. Therefore, the testimony in question was merely cumulative and not a vital factor in the determination of the question of the legal sufficiency of the evidence.

On the issue of mental capacity the testimony of the physician, Dr. Rockhill, who was called by contestant, was stronger in favor of contestant on the present trial than it was on the former trial. With regard to hs ultimate conclusions, proponents concede this to be true, but they contend that, in disclosing more fully the specific reasons on which his conclusions were based, the witness likewise disclosed their unwarranted character. They argue that such opinion testimony is no stronger than the facts or reasons on which it is predicated. Also they rely on a statement in Adams v. Thornton, 5 Cal.App. 455, 461, 90 P. 713, 715, ‘that ‘The want of harmony in the testimony of a witness at two separate trials may of itself render inapplicable the doctrine of ‘the law of the case.”

However, these contentions do not appear to be supported by the record. On the present trial the witness state facts and gave reasons amply sufficient to sustain his conclusions which were entirely consistent with those given on the former trial. Therefore, even though the additional testimony he gave in the present trial might be thought to create a conflict with that given at the former, still that fact would be immaterial on the question of the lega sufficency of the evidence as a whole as found by both courts on the prior proceeding. Pellett v. Sonotone Corp., 26 Cal.2d 705, 708, 160 P.2d 783, 160 A.L.R. 863.

Proponents' further attack upon the testimony of this witness, on the ground that it is impeached by contradictory statements which another witness claimed he made, is without merit since we can not be concerned with matters of credibility of witnesses or conflict in the evidence in an inquiry of this kind.

The fourth and last ground upon which proponents predicate their argument that the rule of the law of the case has no application relates to the testimony of Mr. May, a business acquaintance of the decedent. In the present trial, after testifying generally concerning the physical condition of the decedent including his apparent feebleness and taciturnity, the witness, in reply to a question whether the deceased appeared to be of sound or unsound mind as he knew him at the time, replied: ‘Well, I would say he was of unsound mind.’ On the previous trial this witness when asked about the decedent's physical condition stated that ‘he didn't seem to be a man that could realize anything.’ Proponents now contend that the testimony of this witness at the present trial ‘is vastly weaker and substantially different than on the former trial.’

The record discloses that the evidentiary facts as testified to by the witness were virtually the same on both trials, and it is obvious that the quoted conclusions based thereon were not of such an essentially variant character as to warrant a departure from the law established in the former proceeding.

In urging a different determination from that established on the prior appeal, proponents cite England v. Hospital of the Good Samaritan, 14 Cal.2d 791, 97 P.2d 813. In that case it was held that if the applicable rule of law is altered or clarified in the interval between the first and second appeals, the court on the second appeal should decide the case according to the rule as altered or clarified. However, here as in the case of Wells v. Lloyd, supra, 21 Cal.2d at page 457, 132 P.2d at page 474, there is no question ‘* * * of change of clarification * * * but only of the effect of an appellate court's decision on the sufficiency of the evidence.’ Nor is it evident how injustice can result from the application of settled rules of procedure to the determination of the question of the validity of a purported testamentary disposition by a person of his property.

Moreover, after a careful examination of all the evidence favorable to the case of contestant, as disclosed by the record before us, and independent of such prior adjudication, we are of the opinion that the evidence is of such a character as to make improper an order setting aside the verdict for contestant. See, Estate of Teel, 25 Cal.id 520, 526, 527, 154 P.2d 384.

It follows from what we have said that our decision herein must be in conformity with that of the Supreme Court on the prior appeal. Therefore under all of the facts and circumstances presented in the present appeal it is our conclusion that the trial court herein was not, as we have previously stated, justified in granting a motion for judgment notwithstanding the verdict.

By virtue of the fact that the disposition we have made herein will have the effect of restoring the verdict of the jury and the entry of judgment accordingly, the contentions of appellant relative to the alleged errors of the trial court in refusing the admission of certain proffered evidence become wholly immaterial.

The judgment and order are reversed and the trial court is hereby directed to enter judgment in favor of contestant in accordance with the verdict of the jury.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.