IN RE: KEMP'S ESTATE. (1948)

William C. Kemp died on October 18, 1945, at the age of approximately seventy years. By the terms of his will John A. Boyd and his wife Irene were named as the sole legatees and devisees. On November 5, 1945, the will was regularly admitted to probate and letters testamentary were granted to Boyd, who was named therein as the executor and who qualified and ever since has acted as executor thereof. On January 25, 1946, Minnie A. Riebe, a sister of decedent, filed her contest to the will upon two grounds, (1) mental incapacity, and (2) undue influence of the Boyds. The cause was tried before a jury. At the conclusion of contestant's case proponents' motion for a nonsuit was denied. Their motion for a directed verdict at the conclusion of the entire hearing likewise was denied. The jury failed to agree on the issue of mental capacity, and was discharged as to that issue, but returned a verdict in favor of contestant on the remaining issue of undue influence. Proponents thereupon moved for judgment notwithstanding the verdict, which motion was granted by the trial court against the contestant solely on the issue of undue influence. This appeal is from the judgment which was entered accordingly upon that issue alone.

As stated in her opening brief, appellant's sole contention on appeal is that the trial court erred in granting proponents' motion as to the issue of undue influence in that the verdict of the jury on that question is sustained by substantial evidence. In support of such contention particular attention is called to the evidence of the testator's extraordinarily strong independent will and his refusal to make a will for many years, yet, after he had become weakened, both physically and mentally, he did execute a will devising his entire estate to strangers of the blood and failed to make any provision for the natural object of his bounty, his sole surviving sister. From this appellant concludes that therefore the will was the result of the undue influence of the Boyds.

In line with the question thus posed by both parties we have disregarded the failure of the jury to return a verdict on the issue of the mental capacity of the testator, as have the parties, and have examined the rather lengthy transcript solely with regard to the issue upon which the jury found in favor of the contestant—that of undue influence. From our examination of the evidence we conclude that nothing is disclosed therein which would warrant a retrial on that issue. Contestant has not sustained the burden of proof cast upon her, and therefore the order of the trial court granting proponents' motion for judgment notwithstanding the verdict upon the issue of undue influence should be sustained.

On such issue it may be said preliminary that:

‘Before there is imposed upon the proponent of a will the obligation of presenting evidence of volition, and before the question as to undue influence becomes one of fact for determination by a jury or the court sitting without a jury, there must be evidence, the probative force of which establishes (1) the relations between the one charged with exercising the undue influence and the decedent, affording the former an opportunity to control the testamentary act; (2) that the decedent's condition was such as to permit of a subversion of her freedom of will; (3) that there was activity on the part of the person charged with exercising undue influence, and (4) that such person unduly profited as beneficiary under the will. Estate of Graves, supra [202 Cal. 258, 262, 259 P. 935]; Estate of Hampton, supra [39 Cal.App.2d 488, 103 P.2d 611]. And a presumption against the validity of the will is not created by the existence of any one of the circumstances just narrated, standing alone. It is only when a combination of all these circumstances is present in the evidence that their probative force is sufficient to justify the denial of a non-suit, and place upon the proponent of a will the burden of submitting evidence that the testamentary document was executed free from the taint of undue influence.’ Estate of Hull, 63 Cal.App.2d 135, at page 142, 146 P.2d 242, 245 at page 245.

The record shows that when decedent was approximately sixteen years of age he went to live with the contestant herein in her home, where he remained for the following four yours. During that period she furnished him with food, clothing and shelter and administered to him during his illness. At and end of that period he left, and at no time thereafter did they again live together. On various occasions, during the time of his residence with her and in later years, he told her he was indebted to her for what she had done for him and that some day he would make it right with her. Several years later she moved to Southern California and he moved to Roseville where he secured employment in railroad work. From that time until his death twenty-eight years later, she visited him only four times and he visited her on only two or three occasions. However, throughout their lives they remained on friendly terms, communicating with each other, and immediately prior to his death he was contemplating a visit to her home at Dana Point.

One Miles F. Curran, who had known the decedent and worked with him for more than twenty years, testified, as did all of the witnesses, that the decedent was a very determined man, strong minded and one who could not be easily swayed, that he was one of the founders of the Fort Sutter Building & Loan Association of North Sacramento, of which he was a director up to the time of his death; that approximately ten days or two weeks before his death he stated to Curran that Mr. and Mrs. Boyd and one Ferris (a witness for proponents) wanted him to make a will; that shortly before Kemp died he became quite forgetful and failed to notice or recognize acquaintances and relatives when he met them on the street; that decedent recognized this fact and mentioned it to Curran, stating that he did not think or feel as he had previously and that he was all ‘mixed up.’ Curran also suggested to decedent that he make a will leaving a particular ring to him but Kemp stated he had all he wanted of wills and refused the witness's suggestion. A neighbor testified to the weakened physical condition of decedent shortly before his death, as did his housekeeper. The latter characterized him as being too weak to argue. There also was testimony that for some time prior to his death the decedent knew of the financial condition of the contestant and that she lived off of her old age pension but he took no affirmative steps to alleviate it.

On the day the will was executed decedent requested his neighbor Ferris to ask L. C. Anderson, the attorney who had prepared wills for Kemp and his wife in 1927, to come to his home for the purpose of drafting a will for him. He informed the attorney he desired to give everything he had to Mr. and Mrs. Boyd. He also informed Anderson concerning his sister, the contestant, that she was suffering from a malignant ailment and could not live for more than two years; that he wanted her to have $50 or $75 per month but that he did not want to complicate the will with a trust provision to that effect. After the will was drafted Anderson returned to the Kemp home and handed the document to decedent who, after reading it, stated it was just as he wanted it. Neither of the Boyds were present at the time Kemp discussed the will with Anderson nor at the time it was executed. Anderson had heard Kemp speak of the Boyds prior to and at the time of the probate of Mrs. Kemp's estate as well as when decedent's will was discussed, and therefore knew of the close relationship between them; however he did not meet either of proponents until after the will had been drafted. The original will was found in Kemp's safety deposit box after his death. Following Kemp's death Boyd conferred with Anderson regarding decedent's wishes concerning his sister.

The respondents first became acquainted with the decedent in 1934 when they moved into an apartment house in Sacramento, then owned by the Kemps, and thereafter the two families became close friends. In 1937 the Boyds purchased the building from the Kemps, giving a note and trust deed for the entire purchase price of $6500. When approximately $3700 had been paid, decedent arranged for a reconveyance of the trust deed, and although decedent informed the Boyds he wanted no further payment on the balance, that he didn't need the money and that it would be theirs anyway, they paid in full the balance of approximately $2800. The Kemps at all times had a key to the Boyd apartment. During the time Boyd was in the armed service Kemp corresponded with him every week or so, usually enclosing $5. After Mrs. Kemp's death their visits with one another became more frequent and decedent named Mrs. Boyd beneficiary of a life insurance policy in the sum of $1000. Although the Boyds refused an automobile from Kemp they did accept a check of $1400 for certain repairs to the apartment building. On the day the decedent went to the hospital he gave Boyd a copy of his will stating that was the way he and his wife wanted their property to go; that he appreciated what the Boyds had done for him and his wife; that the only way he would provide for his sister, the contestant, was for Boyd to set up a trust fund of about $5000 from which she was to be paid $50 to $75 per month. The first time Boyd ever saw attorney Anderson was when he went to Roseville after Kemp's death to ask what he should do with some of decedent's personal effects.

Paraphrasing the rule approved in the Hull case, 63 Cal.App.2d at page 142, 146 P.2d at page 245, the evidence here establishes (1) a close friendly relationship—if not a confidential relationship—which undoubtedly afforded the Boyds an opportunity to control the testamentary act, but (2) the record discloses no activity on the part of the Boyds with respect to the drafting or execution of the will. (3) The mere evidence of his forgetfulness and his weakened physical condition immediately preceding his death is not conclusive of a condition such as to permit a subversion of his will, particularly is this true in view of the uncontradicted testimony that he was an independent and exceedingly strong willed person up to the time of his death. (4) Lastly it cannot be said that merely because a stranger to the blood has profited from the will of another he has, therefore, profited unduly, when as in the present case it is shown that the beneficiaries of the decedent's bounty had been for many years the recipients of like treatment from both the testator and his wife, and in addition the beneficiaries had no knowledge concerning the execution of the will or its provisions until after the execution thereof.

In other words, the most that can be said of the evidence is that it shows opportunity was afforded the Boyds to influence the testator. However, it is the well established rule that proof of opportunity to influence the mind of the testator, even though shown to be coupled with an interest or motive to do so, will not sustain a finding of undue influence in the absence of testimony from which it may be inferred that there was pressure brought to bear directly on his testamentary act; that is, the confidential relation must be coupled with activity on the part of the beneficiary in the preparation or procurement of the will. Estate of Graves, 202 Cal. 258, 259 P. 935; Estate of Arnold, 16 Cal.2d 573, 107 P.2d 25; Estate of Hull, supra.

Here there is a complete absence of testimony or other evidence to indicate any activity on the part of the beneficiaries in procuring the will here attacked. To the contrary, the uncontradicted evidence shows that the Boyds knew nothing of the will until after it had been executed. It follows that the evidence is insufficient as a matter of law to support the verdict of the jury on the question of undue influence. Estate of Shay, 196 Cal. 355, 237 P. 1079; Estate of Presho, 196 Cal. 639, 238 P. 944; Estate of Holloway, 195 Cal. 711, 235 P. 1012; Estate of Easton, 140 Cal.App. 367, 35 P.2d 614.

Therefore under the facts and circumstances herein disclosed the judgment, in so far as it denies revocation of probate upon the ground that the will was executed by and under the undue influence of the proponents, is affirmed.

I dissent.

I am convinced the judgment which was rendered in this contest of will is premature and unauthorized by law. It should be reversed and the trial court directed to submit the undetermined issue of lack of testamentary capacity to a jury for decision. The motion for judgment notwithstanding the verdict on the issue of undue influence should not have been decided until all issues pleaded, presented to the jury and relied upon by the contestant were first determined by a jury. The law contemplates but one final judgment in a contest of will by one individual. Otherwise there might be as many judgments and separate appeals therefrom as there are issues presented in a contest of the validity of the instrument. That would result in piecemeal trials and a multiplicity of actions, which the law forbids. The entry of judgment to conform to a verdict is automatically stayed when a motion for judgment notwithstanding the verdict is made, until that motion is decided. C.C.P., sec. 664. I assume that motion should not be decided until all the issues have first been determined for the reason that such procedure would lead to piecemeal judgments and numerous appeals not authorized by law.

This contest under Section 380 of the Probate Code, after the will was admitted to probate, was filed by an elderly sister, who is the only blood relative of the decedent. Two issues were alleged, presented to the jury and relied upon by the contestant, namely, (1) lack of testamentary capacity, and (2) undue influence. The jury returned a verdict in favor of the contestant on the issue of undue influence. The jury failed to agree upon the other issue of lack of testamentary capacity, and was discharged on the court's own initiative. The last-mentioned issue was not waived by the contestant. It was not submitted to another jury, and has not been determined by any jury, as required by Section 1230 of the Probate Code. The proponents moved for judgment notwithstanding the verdict, in spite of the fact that one material issue had not been determined. The contestants opposed that motion. The court erroneously took that issue from the jury by failure to submit it to another jury for determination. In prematurely passing on the motion for judgment notwithstanding the verdict, on the single issue of undue influence, the court said in its written opinion:

‘In view of the jury's failure to agree on the question of soundness of mind, the court for the purpose of this motion must accept the presumption of law that at the time the testator made the will in question he was mentally competent to do so.’ (Italics added.)

The court thereupon granted the motion and rendered a judgment in favor of the proponents, over the protest of the contestant, on the issue of undue influence. Clearly that judgment is premature and unauthorized. If the court determined the issue of lack of testamentary capacity against the contestant, as the previously-quoted language indicates that it did, that decision was erroneous and reversible. The contestant had an absolute right to have that issue determined by a jury. Section 382 of the Probate Code declares that a trial of all material issues ‘must be had’ by a jury. If the court did not intend to decide the entire validity of the will on that motion, then its partial judgment is unauthorized by law, and therefore void. Provided this judgment was authorized, it is apparent that if a trial of the undetermined issue of lack of testamentary capacity should subsequently be submitted to another jury and determined favorably to the contestant, it would be subject to another motion for judgment notwithstanding the verdict, and another appeal. This demonstrates to my mind that the procedure which was followed in this case is not authorized by law.

The majority opinion in this case specifically disregards the fact that the issue of lack of testamentary capacity, which was alleged, submitted to the jury and relied upon by the contestant, has not been decided by a jury. It has been held that it is not necessary to retry the issue which was determined by the jury. But there was a mistrial as to the other issue, which must be decided by a jury, or waived by the contestant, before a valid judgment on the merits of the contest may be rendered.

All issues of fact joined in a contest of will proceeding must be tried in conformity with the requirements of the rules of practice in civil actions. Prob.Code, Sec. 1230. A court has no authority to render judgment until the issues have all been determined. A failure to first decide the material issues is reversible error. 2 Cal.Jur. 1032, sec. 614; 24 Cal.Jur. 940, sec. 186. It has been uniformily held that all issues must be determined in proceedings of contests of wills, and that a judgment may not properly be rendered until all issues are first decided. Estate of Tomlinson, 35 Cal. 509; Estate of Gould, 188 Cal. 353, 365, 205 P. 457; Estate of Hewitt, 63 Cal.App. 440, 444, 218 P. 778; Estate of Webster, 43 Cal.App.2d 6, 18, 110 P.2d 81, 111 P.2d 355; 26 Cal.Jur. 1107, sec. 360. In the Tomlinson case, supra, the court said:

‘The contestants in this case, among others, directly raised the issue by their pleadings, that deceased at the time of making the will in question, was not of a sound and disposing mind, and a special issue presenting the question was framed, certified to the District Court for trial and submitted to the jury, but this issue with several others was not found, one way or the other, and the question was certified back unanswered. The issue was material, and no decree could properly be rendered after such issue had been made, until it should be determined. * * * The judge, however, assumed to determine the several issues thus returned upon the evidence certified from the District Court, and to render a decree according to its own findings. This was clearly error.’ (Italics added.)

In the Webster case, supra, the question of undue influence was found by the jury in favor of the contestant. One other issue was undertermined by the jury. A motion for judgment notwithstanding the verdict was denied. In spite of the undetermined issue the court rendered judgment admitting the will to probate, but denying probate of the codicil. On appeal it was held that the court erroneously admitted the will to probate, and reversed that judgment. It was there held that the contestant had a right to have the undetermined issue decided by a jury. On principle, that case appears to support my conclusion that the trial court erroneously granted the motion for judgment notwithstanding the verdict in this proceeding, and rendered judgment in favor of the proponents.

It is doubtful whether the court was justified in determining, contrary to the finding of the jury, that the will was not procured by the undue influence of the proponents. The burden was on the proponents to show that fact. The evidence clearly shows a confidential relationship between the proponents and the testator, and that the proponents, who were not related to the testator, were given the entire estate which was appraised at $47,357.76. It certainly infers activity on their part. Mr. Boyd was named executor. Mrs. Reibe, the sister, and the only blood relative of the testator, was not mentioned in the will. She is a widow, elderly, ill and in need of financial aid. The testator, who was seventy years of age, and afflicted with an incurable cancer of the stomach, was fond of his sister, to whom he was under obligations, and often expressed his desire to care for her. The testator was a retired railroad man who lived in Roseville. He had been on intimate terms of friendship with the Boyds for several years, and had contributed substantial sums of money toward their purchase of a home, and for other purposes. The testator was also friendly with Mr. G. F. Ferris, another retired railroad man who lived across the street from him, and who cut his lawn and looked after his place when Mr. Kemp became physically unable to perform manual labor. Ferris was friendly with the Boyds and associated with them. There is evidence of activity of Mr. Ferris and the Boyds in procuring the testator to make his will, against his protest. Mr. Miles T. Curran, a railroad conductor, who was a friend and neighbor of Mr. Kemp, and who knew all parties interested, testified that he had a conversation with the testator ten days or a week before the will was made, in which Mr. Kemp said that he was seriously ill and suffering from the cancer; that he was worried and ‘all mixed up,’ and that Ferris and the Boyds were urging him to make a will which he did not want to do, saying, ‘My sister will take care of all that.’ Curran testified that Mr. Kemp then stated: ‘I am not myself, I don't think like I used to. I don't feel too good, I am all mixed up.’ Curran inquired, ‘What is the matter with you, anyway, have you been going to the doctor regularly?’ to which Mr. Kemp replied, ‘Yes, I have been going over to the doctor's, still taking treatment for that trouble in my side. * * * But I am just all mixed up.’ Mr. Curran then inquired, ‘What do you mean, in what way?’ to which Mr. Kemp replied, ‘Well * * * they are after me to make a will * * * Ferris and the kids. Well the kids (he always referred to Mr. and Mrs. Boyd as the kids) * * * They want me to make a will.’ Mr. Curran inquired, ‘Who?’ to which Mr. Kemp replied, ‘Oh, the kids and Ferris.’ Mr. Curran then asked him, ‘What's Ferris got to do with it? Ain't you got a will made?’ to which Mr. Kemp replied, ‘No, and I don't want to make a will. Furthermore, I don't want to make a will. My sister will take care of all that.’

A few days after that conversation, while the testator was suffering acute pain from the cancer of the stomach, Mr. Ferris went to the office of an attorney in Roseville, Mr. L. C. Anderson, who had probated the estate of Mr. Kemp's wife five years previously, and asked him to go to Kemp's home and prepare a will for him. Mr. Anderson did so on October 15, 1945. Neither of the Boyds was then present. There is nothing in the testimony of the attorney to indicate that the will was the product of either unsound mind or undue influence. Mrs. Ferris was then present and signed the will as a witness. The following day Mr. Boyd arranged to and personally took Mr. Kemp to the hospital. He visited Mr. Kemp in the hospital the next day. Mr. Kemp was in constant pain, and he was kept under opiates much of the time. He died October 18th, three days after executing his will.

This case appears to squarely present the question as to whether the proponents of the will, who were in confidential relationship with the testator and who received his entire estate, to the exclusion of the testator's sister and only blood relative, toward whom he was on close friendly relations, have so conclusively and affirmatively proved that the will was not procured by undue influence as to warrant the court in setting aside the express finding of the jury that it was the product of undue influence.

The proponents assert that the foregoing testimony of Mr. Curran, regarding the declarations of the testator that Ferris and the Boyds were urging him to make the will against his wish, is merely hearsay and incompetent. But that evidence was received without objection. I think it was competent, and that it comes within the exception to the general rule with regard to the declarations of a deceased testator. The contestant was entitled to the benefit of every legitimate inference which may be drawn from the evidence. Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Card v. Boms, 210 Cal. 200, 291, P. 190; Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576; Megee v. Fasulis, 57 Cal.App.2d 275, 278, 134 P.2d 815. It is the uniform rule that beneficiaries of a will who are active in procuring its execution, who unduly profit thereby, and who occupy a confidential relationship toward the testator, have the burden of affimatively proving that the will was not procured by their undue influence. Estate of Lances, supra; Estate of Yale, 214 Cal. 115, 123, 4 P.2d 153; Estate of Easton, 140 Cal.App. 367, 376, 35 P.2d 614; Estate of Ehle, 115 Cal.App. 656, 663, 2 P.2d 398; Estate of Gallo, 61 Cal.App. 163, 175, 214 P. 496. While it is true that the declarations of a deceased testator in conflict with the validity of his will are ordinarily incompetent, as an exception to that rule such statements are competent upon the issues of testamentary capacity or undue influence. Estate of Arnold, 147 Cal. 583, 593, 82 P. 252; 1 Bancroft's Prob.Pr., 388, sec. 213; 10 Cal.Jur. 1102, sec. 332. Under the exception to the last mentioned rule, the evidence of Mr. Curran was competent. Moreover, it was adduced without objection. The contestant was entitled to the benefit of that evidence and of all reasonable inferences to be drawn therefrom.

I conclude that the judgment notwithstanding the verdict in this case was unauthorized and void, for the chief reason that the undetermined issue of lack of testamentary capacity was not decided by a jury. The judgment should be reversed.

PEEK, Justice.

ADAMS, P. J., concurs.