Estate of Bould

• Decision Date: 25 August 1955
• Citation: 135 Cal.App.2d 260,287 P.2d 8
• Parties: In re ESTATE of Eleanor M. BOULD, Deceased. Patricia A. HUBBARD, Petitioner and Appellant, v. Oscar DA BELL and Ellen F. Werger, Contestants and Respondents. Civ. 20716.
• Court: California Court of Appeals Court of Appeals

Page 8

287 P.2d 8

135 Cal.App.2d 260

In re ESTATE of Eleanor M. BOULD, Deceased.

Patricia A. HUBBARD, Petitioner and Appellant, v. Oscar DA BELL and Ellen F. Werger, Contestants and Respondents.

Civ. 20716.

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

Aug. 25, 1955.

Hearing Denied Oct. 24, 1955.

Morrison, Simon & McKinsey, T. W. McKinsey, Long Beach, for appellant.

Dally & Saulque, Henry E. Dally, Los Angeles, for respondents.

ASHBURN, Justice pro tem.

As the result of a will contest the trial judge, after a non-jury trial, denied probate of decedent's will of August 15, 1952 upon the ground that it was the product of undue influence exercised upon the testatrix, Eleanor M. Bould, by proponent Patricia A. Hubbard, who has taken this appeal. The testatrix had no relatives except a brother, Albert DaBell, and a niece, Ellen F. Werger, who contested the will and are respondents herein. The contest was based upon a claim of mental incompetence as well as undue influence, but the court found that Mrs. Bould was competent to make the will. Appellant attacks the judgment denying probate upon the ground of insufficiency of the evidence to sustain the finding of undue influence. Consideration of the evidence and the applicable law discloses that appellant's claim is well founded.

The rule which must guide us in considering the evidence is stated in Estate of Teel, 25 Cal.2d 520, 526-527, 154 P.2d 384, 387: "The rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. * * * The rule as to our province is: 'In reviewing the evidence * * * all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary * * * principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.' (Italics added.) * * * The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury's verdict. * * *' * * *

'Of course, all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.'

The primary basis of the ruling is found in the judge's observation that 'the proponent has shown herself so unreliable as a witness, and so willing to testify to any fact that she believes will help her cause, that I place no reliance upon her testimony * * * I place no reliance upon any of her testimony except where it is thoroughly corroborated by other evidence.' It was the judge's prerogative to reject proponent's testimony if found unworthy of belief and the record shows that he was justified in reaching that conclusion. Elsewhere in his 'memorandum opinion' the judge accepts as fact statements of proponent which are in the nature of admissions; and again he exercises a proper judicial function. But the effect of the rejection of testimony is not to be ignored.

Disbelief does not create affirmative evidence to the contrary of that which is discarded. 'The fact that a jury may disbelieve the testimony of a witness who testifies to the negative of an issue does not of itself furnish any evidence in support of the affirmative of that issue, and does not warrant a finding in the affirmative thereof unless there is other evidence in the case to support such affirmative.' Marovich v. Central California T. Co., 191 Cal. 295, 304, 216 P. 595, 600. To this same effect are Edwards v. Freeman, 34 Cal.2d 589, 593, 212 P.2d 883; Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 576, 71 S.Ct. 428, 95 L.Ed. 547; Bunt v. Sierra Butte Gold Mining Co., 138 U.S. 483, 485, 11 S.Ct. 464, 34 L.Ed. 1031. And of course the rule is equally applicable to will contests. In Re Estate of Anderson, 185 Cal. 700, 704, 198 P. 407, 409 it is said: 'The sole witness as to the immediate circumstances under which the will was executed was the aunt, who was called for the purpose of testifying upon the point by the contestant himself. He is, of course, not bound by her testimony (section 2049, Code Civ.Proc.), and the jury was at liberty to reject any of it that did not seem to them worthy of belief, but, rejecting it, there is no evidence to take its place, and, as was said of a similar case in Re Estate of Kilborn, 162 Cal. 4, 120 P. 762, the case is without evidence upon the point.' In Re Estate of Kilborn, 162 Cal. 4, 13, 120 P. 762, 765: 'It is urged by the respondent that Gould, as a witness, was impeached to such an extent as to authorize the jury to disregard his testimony altogether. But the result of this was, at most, to leave the jury without any evidence, one way or the other, on the question of influence or pressure exerted on the testatrix at the time of the making of the will.' See also In re Estate of Thompson, 200 Cal. 410, 416, 253 P. 697; 26 Cal.Jur. § 76, p. 727. The fact that one testifies falsely may, and usually does, afford an inference that he or she is concealing the truth but it does not reveal the truth itself or warrant an inference that the truth is the direct converse of the rejected testimony. Speaking of the adverse inference arising from failure to produce evidence or to testify, 20 Am.Jur. § 193, page 195, says: 'The only inference that may be drawn is that the testimony if given would not have been favorable to the party who did not produce the evidence. Evidence of such conduct is persuasive rather than probative and cannot be invoked as substantive proof of any facts essential to the case of the opponent. The rule has been stated that the presumption will not supply a missing link in an adversary's case and cannot be treated as independent evidence of a fact otherwise unproved.' Concerning spoliation of evidence, section 185, at page 191, says: 'Moreover, while the spoliation of evidence raises a presumption against the person guilty of such act, yet such presumption does not relieve the other party from introducing evidence tending affirmatively to prove his case, in so far as he has the burden of proof.' Like considerations apply to the giving of false testimony.

When Mrs. Hubbard's testimony is discarded the evidence consists mainly of that of Mr. Ward Johnson, Long Beach attorney who drew the will, and his secretary Thelma Myers. However, there are certain undisputed facts (and facts deducible from appellant's testimony without dissent from counsel for either side) which antedate Mr Johnson's participation in Mrs. Bould's affairs. She had been seriously injured in an accident in late January 1952 and was brought from the hospital to the Hubbard home on February 11, 1952, where she was to remain until recovery from her injury, a fractured knee, there to receive room and board and nursing care from Mrs. Hubbard, who had had training as a nurse and was to receive $225 per month as compensation. Mrs. Bould remained there until her death on March 6, 1953. She received good care, was kept clean, was well fed, and happy with her surroundings, with the attention she had, the cleanliness and the abundant food. Her brother and niece were not dependent on her or she on them. Both of them lived in the State of New York; she had not seen the brother since 1927, and the niece only once since that year; she had a visit from the niece in 1951. Mrs. Bould expressed affection for these relatives and corresponded with them. Appellant and Mrs. Bould developed an affectionate relationship which is conceded to have been one of confidence at the time of execution of the will of August 15, 1952, the one under discussion.

An earlier will was made in April, 1952. When the matter of making that will arose Mrs. Hubbard contacted attorney Gus Jaffe (now deceased), he and his wife being friends of hers. He called on Mrs. Bould, conferred with her in the absence of appellant, prepared and brought her a will which she executed on April 4, 1952; it was witnessed by Mr. and Mrs. Jaffe. This will left the entire estate to contestants with the exception of three small legacies. Mrs. Hubbard was not mentioned in it and did not know its contents.

On August 7th appellant, at request of Mrs. Bould, again summoned Mr. Jaffe, who called, conferred with her and drew a codicil, which she executed on August 8, 1952. It revoked two minor bequests and, with the exception of a small gift to Mrs. Nellie Swem, of Long Beach, left all the estate to the contestants, the brother and neice. Appellant testified that she gave Mr. Jaffe the information for this codicil and respondent's counsel seem to accept that as correct. It is evident that she thus knew on August 8th that she was not a beneficiary of the will.

It appears that Mrs. Hubbard was caring for several aged persons in her home, but without a license so to do. On May 7, 1952 she made application to the state Public Welfare Commission for such a license. Investigation was made, followed by denial of the application through letter of August 7, 1952, which the court justifiably found to have been received on or about August 8th, the day of execution of the codicil above mentioned. That letter advised of refusal of a license and that all aged persons must leave the Hubbard home by August 31st. Mrs. Hubbard's testimony warrants the inference that she discussed it with Mrs. Bould and that would be the normal thing to do. Following...