177 Cal. 668, S. F. 8368, In re Allen's Estate

Docket Nº:S. F. 8368.
Citation:177 Cal. 668, 171 P. 686
Opinion Judge:VICTOR E. SHAW, Judge pro tem.
Attorney:E. K. Taylor, of Alameda, and P. J. Crosby, of Oakland, for appellant. McNair & Stoker, Elliott Johnson, and R. W. Palmer, all of San Francisco, for respondent.
Case Date:March 05, 1918
Court:Supreme Court of California

Page 668

177 Cal. 668

171 P. 686





S. F. 8368.

Supreme Court of California.

March 5, 1918

Page 669

         Department 2

         Appeal from Superior Court, Alameda County; Wm. S. Wells, Judge.

         See, also, 169 P. 364.

Page 670

         [171 P. 687] E. K. Taylor, of Alameda, and P. J. Crosby, of Oakland, for appellant.

          McNair & Stoker, Elliott Johnson, and R. W. Palmer, all of San Francisco, for respondent.

          VICTOR E. SHAW, Judge pro tem.

         Andrew Allen died January 20, 1916, at the age of 79 years, leaving a duly executed olographic will dated March 29, 1911, which John Elliott, therein named as executor, filed, with his petition to have the same probated. By the terms of the will deceased left his estate, consisting of real estate and improvements worth approximately $25,000, and subject to a mortgage of $11,000, to two nephews. His next of kin consisted of two daughters, Hannah J. Pearson and Jane A. Allen, for whom, he stated in the will, he had amply provided by deeds of gift and money. Jane A. Allen filed a contest of the will based upon the alleged ground that at the time of its execution by her father he was of unsound mind and without capacity to make a will. The issue as to this question was tried by a jury which returned

Page 671

a verdict that deceased was of sound mind when he executed the will, and in accordance with such verdict judgment was rendered against the contestant and an order made admitting the will to probate. The contestant appeals from this decree and order.

         Appellant, while not claiming that deceased was insane in the broad sense of the term, insists that he was a victim of insane delusions, in the absence of which he would not have made the will whereby nothing was left to his daughters. In her brief appellant specifies a number of alleged delusions entertained by her father, among which was the fact that in his will and also in declarations made by him, he stated that he had amply provided for his daughters by gifts of property and money; that deceased believed that his daughters were conspiring against him; that there would be no one to care for him; that there were guilty of immoral acts; that he drew $7,000 from the bank, and went to Ireland on a visit of ten days, and on his return stated that he came back because it rained; that he was suspicious of his daughters and others; that he used abusive language toward them, and magnified innocent trifles into grave offenses.

         The burden was on contestant to prove the existence of the alleged delusions, and to do this it not only devolved upon her to show that they had no foundation in fact, but also that there was no evidence, however slight or inconclusive, of any fact upon which the belief could be founded. The alleged conduct and opinions of deceased in the instant case are very similar to the grounds upon which the husband contested the will of his wife in the case of Estate of Scott, 128 Cal. 57, 60 P. 527, wherein the question here involved was fully considered, and the court in discussing the sufficiency of the evidence to establish the existence of an insane delusion, among other things, said:

         ‘ The court, however, was not authorized to hold that she [the testatrix] was under an insane [171 P. 688] delusion in reference to these propositions [delusions], unless it was satisfied, from the evidence before it, not only that these charges against him were without any foundation in fact, but also that there was no evidence of any facts brought to her knowledge from which she might form a belief, however irrational or inconclusive it might be, in the existence of the acts or purposes with which she charged him, and, in addition thereto, that she did in fact believe that he

Page 672

was guilty thereof.’

         In American Seamen's Friend Soc. v. Hopper, 33 N.Y. 619, as touching a similar question, it was said:

         ‘ On questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable prejudice with mental alienation.’

         To like effect is Smith v. Smith, 48 N. J. Eq. 566, 25 A. 11. In the determination of the question it was proper for the jury to consider Allen's nature and temperament, his advanced age, the circumstances under which the statements were made, his habits of life, and the general conduct of his daughters towards him. The typewritten transcript of the testimony touching the acts and conduct of the deceased and upon which the claim of appellant is made covers some 750 pages. No purpose could be subserved by an extended reference to it. Briefly stated,...

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