Darilek's Estate, In re

• Citation: 151 Cal.App.2d 322,311 P.2d 615
• Decision Date: 28 May 1957
• Docket Number: No. 17208,17208
• Court: California Court of Appeals
• Parties: ESTATE of Josephine DARILEK, Deceased. Leo HONSA, also known as Leo R. Honsa, Plaintiff, Contestant and Appellant, v. Annie HOSPODARSKY et al., Defendants, Proponents and Respondents.

Page 615

311 P.2d 615

151 Cal.App.2d 322

ESTATE of Josephine DARILEK, Deceased.

Leo HONSA, also known as Leo R. Honsa, Plaintiff, Contestant and Appellant, v. Annie HOSPODARSKY et al., Defendants, Proponents and Respondents.

No. 17208.

District Court of Appeal, First District, Division 1, California.

May 28, 1957.

Rehearing Denied June 27, 1957.

Hearing Denied July 24, 1957.

Jesse A. Mueller, Courtney L. Moore, San Francisco, for appellant.

Harold J. Scott, Alvin A. Lobree, San Francisco, for respondents.

BRAY, Justice.

Respondent Annie Hospodarsky, named therein as executrix, offered for probate a will of decedent dated December 2, 1953. Appellant, Leo Honsa, filed a contest thereof on three grounds: (1) lack of due execution; (2) lack of testamentary capacity; (3) undue influence of respondent. Appellant appeals from a judgment of nonsuit, presenting as the sole question the sufficiency of the evidence as a matter of law.

Evidence.

Decedent at the time of the execution of the will was approximately 84 years of age. She died 14 days after its execution. Appellant is a nephew of decedent, being the son of her predeceased sister. Respondent is a friend of decedent, the widow of Frank Hospodarsky, a predeceased cousin of decedent.

1. Execution of Will.

Alice Bickel, a registered nurse at St. Joseph's Hospital where decedent was confined, went to the latter's room at the request of a student nurse. There she found, besides decedent, Dr. Haage and Attorney Scott. Scott informed her she was to be a witness to the will. Scott read the will aloud and asked decedent if she wanted any changes. She said 'no'. He asked her if she wanted Mrs. Bickel and Dr. Haage to act as witnesses. She said 'yes.' Decedent was propped up in bed. Mrs. Bickel held a book in front of her upon which decedent signed both pages of the will. Although weak, no one guided her hand. The first pen did nor work well and decedent had trouble writing up hill. She started to sign with Scott's pen, finishing with Mrs. Bickel's. Decedent acknowledged the document to be her will in the presence of Dr. Haage and Mrs. Bickel. Both witnesses signed it in decedent's presence and in the presence of each other.

Dr. Haage, decedent's attending physician, the other witness to the will, was called in to the room by Attorney Scott. Present were decedent, Mrs. Bickel and Scott. Dr. Haage could not remember whether she or Mrs. Bickel came into the room first. Respondent and a man were in the room but Dr. Haage could not remember whether they came in before or after Dr. Haage witnessed the will. She first stated that respondent and her son were in the room; then she testified that she was not sure about it; that she could not remember. Scott read the will. Dr. Haage signed the will in the presence of decedent but does not remember seeing Mrs. Bickel sign it. On cross-examination she testified she could not remember telling appellant that only Scott and respondent were in the room or that she did not know of any nurse witnessing the will, nor of telling appellant's attorney that there was no nurse present when she witnessed the will. Appellant testified that Dr. Haage had told him that decedent, Scott, a stout lady and a young man were present at the execution of the will, and that no nurse was present. Other than the evidence concerning statements claimed to have been made by Dr. Haage for impeachment purposes appellant offered no evidence concerning the execution of the will. Such impeachment evidence does not present a conflict in the evidence as to what occurred at the execution of the will. In re Estate of Kent, 1911, 161 Cal. 142, 148, 118 P. 523; Moffatt v. Lewis, 1932, 123 Cal.App. 307, 310, 11 P.2d 397; 19 Cal.Jur.2d 115. The evidence, without conflict, made out a prima facie case of due execution. Once the proponent of a will proves a prima facie case of due execution the burden is on the contestant to show lack of due execution by positive and affirmative evidence. Swift v. Superior Court, 39 Cal.2d 358, 247 P.2d 6; In re Estate of Morey, 75 Cal.App.2d 628, 171 P.2d 131. The forgetfulness of one of the attesting witnesses does not destroy the other proof. In re Estate of Harvey, 143 Cal.App.2d 368, 372, 299 P.2d 712. At argument appellant conceded that the probate court correctly granted a nonsuit on this issue and stated that he was not appealing therefrom.

2. Testamentary Capacity.

In the latter part of November, Mrs. Nelson, a friend of decedent's phoned respondent, who had known decedent for a long period, of her illness. Respondent went to decedent's basement flat. Decedent was cold. Therefore respondent and her son Frank took decedent to respondent's home where she stayed for 10 days. No doctor was called. Around Thanksgiving decedent wanted to go home. Respondent and Frank took her to her cold apartment and left her there alone. Respondent knew appellant and that he was the nephew and she also knew his phone number. Respondent did not call him about his aunt's illness. A couple of days later, November 29th, Mrs. Nelson again phoned respondent concerning decedent. At decedent's apartment a doctor informed respondent that decedent must go to the hospital. Respondent accompanied her to the hospital in the ambulance. The next day respondent phoned appellant's home and informed his wife that decedent was in the hospital. December 3rd appellant learned of this from his wife. He immediately left Healdsburg, where he lives, for San Francisco. He had last seen his aunt in October when her condition seemed fairly good and she seemed to be happy. At the hospital she appeared thin and sunken, her eyes glassy. She was inattentive to anything that was said. Her only response was 'Oh.' She could not talk. She did not say a word that was plain enough to understand. After 10 to 15 minutes the nurse requested him to leave. After his aunt's death appellant asked Dr. Haage's opinion as to decedent's mental condition and was told that the doctor believed her to have been of sound mind.

Marian Van Gieson, a registered nurse, saw decedent the night before she was taken to the hospital. Decedent was weak, with a bad pulse. Her lips were blue. She was a very sick woman.

Obviously there is no evidence in any of the above of lack of testamentary capacity at the time of the execution of the will. It is the testimony of Dr. Kelley, a licensed physician, upon which appellant relies as evidence to meet the presumption of capacity and lack of evidence of incapacity. He did not see decedent but described her condition on December 1st (the day before the execution of the will) as it appeared from the hospital records. The record showed that she had congestive heart disease; her heart was not getting the blood around; she had auricular fibrillation, which meant that the heart instead of pumping the blood was merely fluttering. The basic diagnosis was bronchial pneumonia and hypertensive cardiovascular disease (high blood pressure). At 9 p. m. the nurse noted 'She talks to herself. Difficult to make patient understand instructions.' ¹ Dr. Kelley then stated that he would feel that 'probably at this point she was quite confused, and since she then got worse, I would think this confusion continued until the oxygen was administered on the 3rd.' Dr. Kelley qualified as a physician and psychiatrist and also as a handwriting expert. He was shown exemplars of decedent's handwriting written in November and her signatures on the will of December 2nd. Basing his opinion on the portion of the hospital records hereinbefore referred to and his examination of her signatures on the will he gave it as his opinion that decedent was not competent to know what she was doing at the time of the execution of the will. He further testified that she was unable to 'know who their heirs were or the persons entitled to their bounty, or anything connected with their affairs.' The trial court held, and we think properly so, that upon this meager background Dr. Kelley's opinion was too speculative to constitute substantial evidence of testamentary incapacity. Proof of extreme feebleness, sickness, old age, etc., does not prove mental incapacity nor shift the burden of proof on the proponent. In re Estate of Latour, 140 Cal. 414, 73 P. 1070, 74 P. 441; In re Estate of Casarotti, 184 Cal. 73, 192 P. 1085. Substantial evidence is necessary to create the required conflict. See Witkin, California Procedure, p. 1858, § 126. See In re Estate of Little, 1920, 46 Cal.App. 776, 189 P. 818, where judgment of nonsuit was affirmed, the court rejecting expert opinion that the testator was insane based on a comparison of the testator's writing as being insufficient evidence.

A contestant is required to prove testamentary incapacity at the very moment of the execution of the will. There is a presumption that a person is of sound mind at that very time. In re Estate of Greenhill, 99 Cal.App.2d 155, 166, 221 P.2d 310. Also a contestant must prove that the will was not made at a lucid interval. In re Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990; In re Estate of Barr, 69 Cal.App. 16, 230 P. 181.

The medical testimony here was similar to that in Re Estate of Powers, 81 Cal.App.2d 480, 184 P.2d 319, where the court held that as a matter of law the testimony was not substantial enough to support the jury's finding that the testatrix lacked testamentary capactity. There, as here, a comparison of the testatrix's handwriting on the will with other exemplars of her handwriting was made. There, two medical experts, while here only one, examined the hospital records and 'accepted only those portions of the hospital records which supported their opinions and rejected those portions which contradicted their opinions.' 81 Cal.App.2d at page 485, 184 P.2d at page 322. By coincidence, the hospital record in that case, just as in our case, had no entry on the day the will was executed. Stronger than our case, the...