IN RE: ESTATE of Theresa GARIBALDI (1961)

Appellants, the proponents, have appealed from an order denying probate of the will of their mother, Theresa Garibaldi, deceased. The order was made on a finding of the trial court that the will was procured by appellants' undue influence.

Appellants contend (1) that the judgment is not supported by the evidence, and, (2) that the trial court committed error prejudicial to appellants' case in amending its pretrial conference order and in permitting the respondents to amend their pleadings.

The issues as set forth in the original pretrial order were: 1. Is the document in question actually a will? 2. Is it fully written, dated and signed, all in the handwriting of the deceased? 3. Was the document procured by undue influence?

Concerning the third issue, that of undue influence, the contestants' contention in the pretrial statement was that the document offered for probate was unnatural in its provisions; that it was at variance with the decedent's expressed testamentary intent; that the relationship between the persons benefited thereby and the decedent afforded them opportunity to control any testamentary act; that the decedent's physical condition would permit easy subversion of her will by others; and that the persons benefited thereby were active in procuring the execution of the document.

After the matter was tried and submitted by the parties, but before judgment, the contestants moved for leave to file an amendment to the contest and to the pretrial order, to conform to the proof. The trial court granted the motion over the proponents' objection. However, the amendment to the pretrial order was formally entered subsequent to the judgment.

On the issue of undue influence the trial court found: That Joseph, Leo and Leona Garibaldi were in a position of confidential relationship with the deceased from the time of their father's death on September 12, 1939, until their mother's death on October 2, 1956; that Joseph, Leo and Leona wrongfully misused the trust and confidence placed in them and the authority granted them for the purpose of obtaining an unfair advantage over the deceased and the contestants; that the document offered for probate was the product and result of the wrongful misuse of such trust and confidence; that unfair advantage was taken of decedent's age and illness; that material facts known to the proponents to be true and which it was their duty to disclose to the deceased, were suppressed and not disclosed by them; that the duty owed was to make a full disclosure of all material facts concerning the nature and extent of the decedent's property; that the proponents intentionally failed to disclose and concealed from the deceased the existence of various bank accounts, standing in proponents' names alone, in which the deceased had an interest; that the fact that title to various parcels had been taken in Joseph and Leo Garibaldi's names alone was also concealed; that the true market value of various properties and decedent's net worth was concealed, as was the true amount of money each proponent had received from various business transactions with the deceased; that as a result of this non-disclosure, at the time of her death Theresa Garibaldi did not know the true nature and extent of her property, and that such suppression and non-disclosure unduly influenced the deceased into executing the document offered for probate. The trial court further found that decedent was equally fond of all her children and that the document offered for probate is unnatural as her will and that the document ‘was not the product of her own volition but was the result of the volition of’ the proponents and was procured by their undue influence. The trial court also found that the document in question was entirely written, dated and signed by the hand of Theresa Garibaldi, deceased, and that she expressed her testamentary intent in the document. Upon these findings the trial court made its order denying probate to the document.

The contestants urge that under Section 956 of the Code of Civil Procedure they may, as respondents, raise the issue of testamentary intent against the finding and judgment that such intent existed. While under the rule, as stated in Central Manufacturing District, Inc. v. Board of Supervisors, 176 Cal.App.2d 850, 1 Cal.Rptr. 733, the contestants may properly assert that there was no testamentary intent established by the evidence, they, nevertheless, are bound by the findings of fact if the record discloses any substantial evidence to support the trial court's findings. The document offered for probate was entirely written in the Italian language. A translation admitted into evidence was as follows:

‘June 16, 1956

‘I declare that I, Leona, Joe and Leo are partners in the properties as in the debts. Therefore I will that my share be divided in equal shares to Leona, Joe and Leo.

‘And we partners must pay Elvira, Edith, Henry, Clarence, and Raymond, (Spelled with an ‘b’) $7,000.00 ‘7000.’ (in figures).

‘Signed: Theresa Garibaldi’

We feel that the sentence, ‘Therefore I will that my share be divided in equal shares to Leona, Joe and Leo’ clearly indicates a testamentary intent. Further, Joseph Garibaldi testified that when his mother handed him the document to be delivered to her attorney, she stated that it was her ‘will’. Contestants' contention is without merit.

Turning now to appellants' contention that the evidence is insufficient to support the trial court's finding of undue influence, the trial court found the existence of undue influence from the proponents' wrongful failure to disclose facts relating to the value of the decedent's property holdings. This ground was not set out in the pretrial order as originally drafted, but was added subsequent to the trial of the contest and the decision of the trial court. Assuming, without deciding, that the granting of the amendment was prejudicial error, it is immaterial, as we have concluded that the evidence is insufficient to support the court's finding of undue influence and the order denying probate of the document on that ground.

A statement of the facts most favorable to the contestants respecting this issue is as follows: Appellants and respondents are the surviving children and the sole heirs at law of the decedent, Theresa Garibaldi, who died on or about the 2d day of October, 1956, at the age of 87 years. For a number of years prior to her death, decedent had been quite ill, suffering from arteriosclerosis, hernia, diverticulosis of the colon, non-functioning gall bladder and arthritis of the spine, and had been confined to various hospitals on six different occasions, and from April, 1949, to the time of her death was under the continuous care of a physician, receiving treatment for her physical ailments. The respondents had lived upon the home ranch and were reared there, but each respondent left after he or she married. However, after leaving to live elsewhere, they all spent considerable time on the home ranch, helping about the place and visiting with and helping their mother up to the time of her death, assisting her during her illness and taking care of her at times. The contestant Henry Garibaldi handled all of his mother's timberland affairs, and handled and accounted for all income therefrom to her after his father's death in 1939, up to the time of the mother's death. On the other hand, the appellants were all living on the home ranch and after their father's death were completely supported by the mother and the ranch operations. Shortly after the father's death, the appellants began, at the suggestion of a tax adviser, to file partnership income tax returns for the ranch operations in the names of the decedent and the appellants, Joseph, Leo and Leona Garibaldi, and while there was testimony that a partnership in the ranch operations was formed, no formal partnership agreement was executed or prepared. Respondents had no knowledge of the existence of the partnership agreement until after decedent's death. The ranch properties involved included three separate ranches. These are known as the home ranch, the river ranch and the mountain ranch. The home ranch consisted of approximately 1,500 acres and the family home is located thereon. This ranch is primarily grazing property, although in the past the family, prior to the father's death, had produced various crops near the home. The river ranch contained approximately 3,000 acres of land and is used for grazing purposes. It has been leased to third persons in recent years. The mountain ranch is located in the Sierras, is primarily timberland, but also can be used for grazing purposes; 3,400 acres of this ranch was of record in Theresa Garibaldi's name at the time of her death; 2,400 acres of this ranch was at the time of her death owned jointly by the contestant Henry Garibaldi and Theresa Garibaldi; and 5,500 acres of this ranch is in the name of Leo Garibaldi and Joseph Garibaldi, who admitted that Theresa Garibaldi had an interest therein. It is this mountain ranch which was handled and managed by the contestant Henry Garibaldi after the father's death, and with the cooperation of the proponent Joseph Garibaldi.

In September of 1949, appellant Joseph Garibaldi went with his mother to the law firm of Bradford, Cross, Pryor and Sheehy, his attorneys, in Sacramento, where a grant deed was drawn, whereby the three ranches in question were conveyed to the appellants. The deed bears date September 10, 1949. Joseph Garibaldi was in the law office with his mother at the time the deed was under discussion and he, Joseph, later furnished the attorneys with the legal description of the properties. This deed was not recorded until January 2, 1958, in Amador County, and January 9, 1958, in El Dorado County, approximately fifteen months after the decedent's death. Respondents had no knowledge of the deed from any source prior to its recordation.

Beginning in 1949, the appellants began depositing money in a bank account in their names alone, omitting decedent's name. At the time of the mother's death there was $61,602.80 in this account.

There is also evidence that contestants seldom heard their mother discuss business matters; that she was easily controlled; that prior to her death decedent believed that she had but little net worth; that she often stated that all her children should share equally in any property or estate she might leave in the event of her death; that she trusted and confided in appellant Joseph Garibaldi and respondent Henry Garibaldi to handle her business affairs. However, the nurse most closely associated with her during her last illness never saw any of the appellants show their mother any checks, bills, bank statements or similar things. There was also testimony that the appellants discussed property values with their mother, but that these discussions were often based on the value of the properties at the time of the father's death and the net worth as of that date which was approximately $46,800. Actually the value of the properties at decedent's death was in excess of $700,000.

In Estate of Robbins, 172 Cal.App.2d 549, 554, 342 P.2d 933, 937, this court said:

‘* * * Influence to be undue so as to justify the voidance of a will must be such as in effect to destroy the testator's free agency and substitute for his own another person's will. It must be shown that pressure was brought to bear directly on the testamentary act. The influence must be shown to have been directed to procuring the will and must have amounted to coercion, destroying free agency on the part of the testator. Proof of general influence alone is insufficient. Proof of opportunity to influence the making of the will, even coupled with an interest or motive to do so, is insufficient. In re Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25, 27. It was said in that case: “The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of ‘a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made.”’ See, also, In re Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990, and In re Estate of Goddard, 164 Cal.App.2d 152, 330 P.2d 399. A will cannot be overturned on the mere speculation or suspicion that undue influence may have been used to procure it. In re Estate of Gleason, 164 Cal. 756, 765, 130 P. 872; In re Estate of Welch, 43 Cal.2d 173, 272 P.2d 512. Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will, must amount to coercion destroying free agency. In re Estate of Welch, supra, 43 Cal.2d at page 175, 272 P.2d at page 513. ‘It is not sufficient for a contestant to merely prove circumstances consistent with the exercise of undue influence; but before the will can be overthrown the circumstances must be inconsistent with voluntary action on the part of the testator.’ In re Estate of Welch, supra, 43 Cal.2d at page 178, 272 P.2d at page 515.'

Such procurement can be proved by circumstantial evidence. Estate of Abert, 91 Cal.App.2d 50, 204 P.2d 347. Nevertheless, such proof must warrant a reasonable inference of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made. See Estate of Jamison, 41 Cal.2d 1, 256 P.2d 984.

Applying the law as stated in the foregoing decisions to the facts in the instant case, we have concluded that the finding that the will was procured by undue influence cannot be upheld. There is a lack of proof of ‘a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made.’ Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25, 27. While there is testimony by Joseph Garibaldi that at the request of his mother he procured the pen, ink and paper with which to write the will, this testimony at most shows only passive participation in the procurement and execution of the will. Estate of Finkler, 3 Cal.2d 584, 598–599, 46 P.2d 149; Estate of Watkins, 81 Cal.App.2d 465, 476, 184 P.2d 192. The evidence shows that Joseph did not know the provisions of the will as the decedent had not disclosed the same to him and he could not read the Italian language. Neither did Leo or Leona have knowledge of the provisions or the existence of the decedent's will until after the latter's death.

There is no merit in appellants' argument that respondents admitted, in effect, that they had participated in procuring the execution of the document by stating that they had made a mistake in its contents. The testimony relied upon in support of this contention leads only to the conclusion that the proponent who made the statement ‘we made a mistake’ was referring to a letter interpreting the will which was sent to the contestants and was not referring to the document offered as decedent's will.

The contestants rely heavily upon Estate of Nutt, 181 Cal. 522, 523, 526, 185 P. 393, in support of their contention that where proponents are in a confidential relationship to the deceased, there is a duty to disclose facts, and failure to disclose such material facts may justify setting aside the will in question. The court in that case, in discussing the question of when a presumption of undue influence will arise, expressly recognized the necessity of activity in the preparation of the will as a prerequisite for such a presumption to exist. Estate of Teel, 25 Cal.2d 520, 154 P.2d 384; Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990. Further, in Estate of Nutt, supra, the appellant conceded that activity was sufficiently present to raise the presumption, but argued that the presumption had been rebutted. The court held that the appellant did not meet the burden of proof to rebut the presumption. In the present case the presumption never arose as the necessary element was lacking.

The judgment is reversed.

WARNE, Justice pro tem.

PEEK, Acting P. J., and SCHOTTKY, J., concur.