IN RE: ESTATE of Eleanor M. BOULD. (1955)

Hearing denied by Supreme Court.

This case was tried before a most able and conscientious judge who heard the testimony of the witnesses and observed their demeanor and arrived at the conclusion that the will here involved was the result of the undue influence of the proponent. To my mind there can be no question as to the sufficiency of the evidence to support the finding of the trial court in this case, and the reversal of the judgment denying the admission of the will to probate amounts to nothing less than a redetermination of the factual issues by the District Court of Appeal and a majority of this Court passing upon the weight of the evidence and the credibility of the witnesses.

I cannot refrain from again repeating that which I have so often stated in recent years that in certain types of cases a majority of this Court has seen fit to usurp the function of the jury and trial judge in determining issues of fact. Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663; Better Food Markets v. American Dist. Teleg. Co., 40 Cal.2d 179, 253 P.2d 10, 42 A.L.R. 580; Atkinson v. Pacific Fire Extinguisher Co., 40 Cal.2d 192, 253 P.2d 18; Gill v. Hearst Publishing Co., 40 Cal.2d 224, 253 P.2d 441; Goodman v. Harris, 40 Cal.2d 254, 253 P.2d 447; Pirkle v. Oakdale Union etc. School Dist., 40 Cal.2d 207, 253 P.2d 1; Burtis v. Universal Pictures Co., Inc., 40 Cal.2d 823, 256 P.2d 933; Kurlan v. Columbia Broadcasting System, 40 Cal.2d 799, 256 P.2d 962; Weitzenkorn v. Lessee, 40 Cal.2d 778, 256 P.2d 947; Turner v. Mellon, 41 Cal.2d 45, 257 P.2d 15; Barrett v. City of Claremont, 41 Cal.2d 70, 256 P.2d 977; In re Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990; Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834; In re Estate of Welch, 43 Cal.2d 173, 272 P.2d 512; Keiper v. Northwestern Pacific Railroad Co., 134 Cal.App.2d 713, 288 P.2d 262.

The types of cases in which this Court has seen fit to pass upon factual issues are those relating to will contests and cases in which damages for personal injuries are sought. In criminal cases, however, a majority of this Court has seen fit to hold that a mere suspicion is sufficient to support a conviction of crime. Bompensiero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250.

In my dissenting opinions in In re Estate of Lingenfelter, 38 Cal.2d 571, at page 588, 241 P.2d 990 and In re Estate of Welch, 43 Cal.2d 173, at page 181, 272 P.2d 512, I endeavored to express my views with respect to the ruthless disregard by a majority of this Court of the constitutional and statutory provisions relating to will contests. What I said there is equally applicable here and I commend the reading of those opinions by those who may be involved in this type of litigation.

I would grant respondents' petition for a hearing and affirm the judgment of the trial court.