Arbuckle's Estate, In re

• Decision Date: 24 July 1950
• Citation: 23 A.L.R.2d 372,98 Cal.App.2d 562,220 P.2d 950
• Court: California Court of Appeals Court of Appeals
• Parties: , 23 A.L.R.2d 372 In re ARBUCKLE'S ESTATE. STAINBACK et al. v. WEST. Civ. 17313.

Page 950

220 P.2d 950

98 Cal.App.2d 562, 23 A.L.R.2d 372

In re ARBUCKLE'S ESTATE STAINBACK et al. v. WEST.

Civ. 17313.

District Court of Appeal, Second District, Division 3, California.

July 24, 1950.

Rehearing Denied Aug. 17, 1950.

Hearing Denied Sept. 21, 1950.

Margolis & McTernan, John W. Porter, Los Angeles, for appellant.

Knight, Gitelson & Ashton, Alfred Gitelson and Robert R. Ashton, all of Los Angeles, for respondents.

VALLEE, Justice.

Appeal by Stuart N. West from a judgment dismissing a proceeding instituted by him to revoke the probate of a will. The contest was dismissed on the ground that West was not an interested person entitled to contest the will under Probate Code section 380.

West, not an heir at law of decedent, bases his right to contest the will on the ground he is the principal beneficiary under a prior will and codicil, executed by Pearl P. Arbuckle, decedent, which will, together with the codicil, was destroyed in 1943 or 1944, during decedent's lifetime, without her knowledge or consent.

Mrs. Arbuckle died testate February 26, 1947, in Los Angeles. On April 17, 1947, her purported last will and testament, dated November 19, 1939, was admitted to probate. By this will all of decedent's property was bequeathed to her niece Katherine Elizabeth Stainback, who was also named executrix. On August 5, 1947, West filed a petition seeking revocation of the probate of the 1939 will on the grounds of want of testamentary capacity and undue influence. Respondents filed a general denial and as a special defense alleged that West was not an 'interested person' entitled to contest the will.

By stipulation of counsel the latter issue was presented to the court for determination on the opening statement of plaintiff's attorney prior to trial of the issues of fact relating to the validity of the asserted will. Cf. In re Estate of Plaut, 27 Cal.2d 424, 426, 164 P.2d 765, 162 A.L.R. 837; In re Estate of Land, 166 Cal. 538, 540, 137 P. 246; In re Estate of Wickersham, 153 Cal. 603, 612, 96 P. 311. Contestant's attorney made an opening statement in which he outlined the facts he expected to prove. Respondents then moved to dismiss the proceeding on the ground it affirmatively appeared contestant was not an interested person under Probate Code Section 380. No evidence was received. The motion was granted. West appeals from the judgment which followed.

The opening statement revealed that appellant was prepared to prove the following facts:

Appellant and decedent's daughter Edith were married in 1916. Edith died in 1917. Decedent met a Mr. Bell in 1920 or 1921 in connection with a real estate transaction. Thereafter a relationship of great confidence developed between them which continued for almost 20 years. Bell supervised and managed decedent's real estate interests, and in the latter part of 1934 was given a general power of attorney by decedent to handle her business affairs and property. In 1933 decedent decided to made a will and went to Bell for assistance. She explained the terms of the proposed will to him and he drafted it for her. Decedent approved it and executed it in his office in the presence of two witnesses who signed it in her presence. Bell was named as executor of the will. It provided that after paying the debts of the estate he was to liquidate the real estate interests and divide the proceeds four-fifths to appellant and one-fifth to decedent's half-sister Virginia Stainback. Only an original of the will was made which decedent at the time of execution handed to Bell for safekeeping. About a year later decedent made an holographic codicil which modified the 1933 will only by naming two beneficiaries as legatees of $500 each. On its execution decedent delivered the codicil to Bell for safekeeping. Bell placed the will and the codicil in his safe deposit box.

Beginning in 1934 decedent gradually deteriorated mentally. In 1938 Bell arranged for a companion nurse for her. In May of that year the companion nurse sent for Katherine Stainback, urging her to come to California to look after decedent. Katherine came to California and later was joined by her mother and father. On November 19, 1939, decedent executed the will in contest. At that time she was between 73 and 83 years of age. Soon after the execution of this will the Stainbacks notified Bell his services as decedent's manager were no longer required. In November, 1942, decedent was placed in a private mental sanitarium by the Stainbacks, where she remained until her death.

The 1933 will and the codicil thereto remained in Bell's safe deposit box until about 1940, when he transferred them to a file in his office. In 1943 or 1944, and after decedent had been placed in the mental sanitarium and at a time when she was of unsound mind, Bell, in accordance with his practice of periodicially cleaning out his business files and assuming that his relationship with decedent had been finally terminated, took all the papers in the Arbuckle file and desroyed them by burning, including the 1933 will and the codicil thereto. He destroyed the 1933 will and the codicil thereto in the absence of decedent, without her direction and without her knowledge or consent. Facts giving color to appellant's claim on decedent's bounty and showing that in naming West as the principal beneficiary in the 1933 will decedent was discharging an obligation to him for which she had received consideration, were also stated.

We, of course, assume the facts stated in the opening statement to be true for the purpose of this decision.

Where it is shown that a will cannot be found after the death of the testator and when last seen or known to exist it was in his possession, two inferences arise: 1) that the will was destroyed by the testator, and 2) that the act of destruction was done animo revocandia. In re Estate of Johnston, 188 Cal. 336, 339, 340, 206 P. 628; In re Estate of Moramarco, 86 Cal.App.2d 326, 334, 194 P.2d 740; 26 Cal.Jur. 807, sec. 141. These inferences do not arise in the present case. According to the opening statement, upon the execution of the will it was deposited with Bell as custodian and remained in his possession until its destruction. The same was done with the codicil. It affirmatively appears that the testatrix did not, after the execution of the will or codicil, have either in her possession or have access to either of them. In re Estate of Thompson, 44 Cal.App.2d 774, 777, 112 P.2d 937.

Only an interested person may contest a will either before or after probate. (Prob.Code, secs. 370, 380.) An interested person is one who has 'such an interest as may be impaired or defeated by the probate of the will, or benefited by setting it aside.' In re Estate of Plaut, 27 Cal.2d 424, 425, 426, 164 P.2d 765, 766, 162 A.L.R. 837; In re Estate of Land, 166 Cal. 538, 543-544, 137 P. 246; In re Estate of Bily, 96 Cal.App.2d 333, 215 P.2d 78. A beneficiary under an earlier will which would be entitled to probate if the contested will is declared invalid is an interested party and may contest the later will without first obtaining probate of the earlier one. In re Estate of Plaut, 27 Cal.2d 424, 428-429, 164 P.2d 765, 162 A.L.R. 837. The term 'interested person' includes one interested under a prior will which has been fraudulently destroyed. McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336, 339, 340; Re Will Chittenden, 1 Tuck, N.Y., 135; 68 C.J. 928, sec. 671; cf. In re Estate of Phillips, 202 Cal. 490, 498, 261 P. 709.

In a contest of a will after probate the main issue to be adjudicated is the validity of the will admitted to probate, not the absolute validity of an earlier will under which the contestant claims; and a prima facie showing of the contestant's interest is sufficient. In re Estate of Langley, 140 Cal. 126, 130, 73 P. 824; In re Estate of Plaut, 27 Cal.2d 424, 428, 164 P.2d 765, 162 A.L.R. 837. While probate of an earlier will, under which a contestant claims, is not necessary before he may maintain a contest, he has, nevertheless, the burden of proof on the trial of the contest and must, if the allegations of the petition concerning the earlier will are denied, make out at least a prima facie case as to the existence, terms and validity of the earlier will and his interest thereunder, In re Estate of Munfrey, 61 Cal.App.2d 565, 568, 143 P.2d 414, 144 P.2d 370; Kennedy v. Walcutt, 118 Ohio St. 442, 161 N.E. 336, 337-338; Anno; L.R.A.1918A, 471, for if the will under which he claims is not a valid, unrevoked will, it is immaterial to him whether any other will is admitted to probate. In the case of an alleged destroyed will, a prima facie showing must be made that the will can be established as a destroyed will under Probate Code section 350.

Section 350 provides that no will can be proven as a destroyed will 'unless * * * shown to have been destroyed fraudulently * * * in the lifetime of the testator, without his knowledge * * *.' Section 350 is remedial in its nature and is to be liberally construed in furtherance of justice and for the prevention of fraud. In re Estate of Camp, 134 Cal. 233, 235, 66 P. 227; In re Estate of Patterson, 155 Cal. 626, 638, 102 P. 941, 26 L.R.A., N.S., 654, 132 Am.St.Rep. 116, 18 Ann.Cas. 625; see also In re Frandsen's Will, 50 Utah 156, 167 P. 362, 364; Hall v. Gilbert, 31 Wis. 691, 694; In re Dorrity's Will, 118 Misc. 725, 194 N.Y.S. 573, 576; Hook v. Pratt, 8 Hun., N.Y., 102, 109; Thornton on Lost Wills, p. 46, sec. 23.

It is undeniable, upon the facts stated to the court, that the testatrix did not destroy the will of 1933 or the codicil thereto, nor was either of them destroyed in her presence, or by her direction, or with her consent or knowledge. It follows that neither the 1933 will nor the codicil thereto has been legally revoked. Nowhere does the Probate Code declare that the destruction of a will by someone other than the testator, without his knowledge or consent, destroys...