Estate of Bullock

• Decision Date: 07 June 1956
• Citation: 297 P.2d 633,140 Cal.App.2d 944
• Parties: In the Matter of the ESTATE of Ermina BULLOCK, Deceased. Bela SMITH, Mamie Newman and Elsie Burge, Contestants and Respondents, v. Nellie B. SMITH, as Legatee under the Will of said Decedent, and as Petitioner for the Probate of the Will of said Decedent and for Letters of Administration with the Will Annexed, Proponent and Appellant. Civ. 8747.
• Court: California Supreme Court

Page 633

297 P.2d 633

140 Cal.App.2d 944

In the Matter of the ESTATE of Ermina BULLOCK, Deceased.

Bela SMITH, Mamie Newman and Elsie Burge, Contestants and Respondents, v. Nellie B. SMITH, as Legatee under the Will of said Decedent, and as Petitioner for the Probate of the Will of said Decedent and for Letters of Administration with the Will Annexed, Proponent and Appellant.

Civ. 8747.

Supreme Court of California, In Bank.

June 7, 1956.

Prior opinion, 295 P.2d 954.

PER CURIAM.

Hearing denied.

CARTER, TRAYNOR and McCOMB, JJ., dissenting.

CARTER, Justice (dissenting).

Because of the far-reaching effect of the decision of the District Court of Appeal, 140 Cal.App.2d 944, 295 P.2d 954, in this case I am constrained to comment on the refusal of this court to grant a hearing and give the case further consideration.

I think it is obvious that the decision of the District Court of Appeal was influenced by the decisions of this court in In re Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990, and In re Estate of Welch, 43 Cal.2d 173, 272 P.2d 512, in both of which cases Mr. Justice Schauer and I dissented. In my dissenting opinion in In re Estate of Welch, 43 Cal.2d 181, 272 P.2d 517, I pointed out that the Constitution and statutes of this state make it mandatory that questions of fact in will contests must be determined by a jury unless a jury is waived, and that there is no distinction as to what are issues of fact in will contests and any other type of case. However, the majority of this court has seen fit in the above cited cases and in the case at bar to disregard the constitutional and statutory provisions of this state and hold, in direct violation of said constitutional and statutory provisions, that the determination of the factual issues in a will contest is the function of this court and not of the trial court or jury, thus repealing, by judicial fiat, section 19 of article VI of the Constitution of California and section 371 of the Probate Code.

There can be no question but that the majority of this court has abrogated this constitutional and statutory provision because it is opposed to a trial judge or jury determining factual issues in cases of this character. In fact, the common expression is heard, when these cases are being considered, that 'We do not want juries to be making wills for people.' Of course, this is not the issue in any case of this character. The issues are, whether the testator is of sound and disposing mind and whether or not in executing the will, he acted freely and voluntarily or was under the undue influence of those who profited unduly by the execution of the will. These issues have been entirely ignored by the majority and the evidence bearing upon them has been disregarded. Even if it were the function of the jury in such a case to remake a will, which it is not, I believe it could make a better will than one who is insane or whose will is the product of the undue influence of an artful, designing person. Of course, the oft-repeated assertion that a jury in a will contest makes a new will for the testator is absurd, as the only effect of a verdict upsetting a will is that the law of succession will apply to the disposition of the estate, and the heirs at law of the testator will inherit has estate instead of those who may not be the true objects of his bounty. However, so long as a majority of this court continues to violate the constitutional and statutory provisions above cited it will be idle for anyone to exercise his constitutional and statutory right to contest a will even though the evidence shows conclusively that the testator was hopelessly insane at the time he executed the will or was completely overcome by undue influence of the proponent of the will. Thus, four members of this court by their arbitrary and capricious holding as demonstrated by every case that has come before this court involving a will contest during the past ten years or more has, in disregard of the evidence, the verdict of a jury, the holding of the trial judge and, in many cases, the unanimous decision of the District Court of Appeal, upheld the validity of the will involved. This record clearly shows a pattern from which the inevitable conclusion must be drawn that the majority of this court is opposed to the constitutional and statutory provisions above cited and intends to nullify them by refusing to uphold any judgment rendered pursuant thereto which denies probate of a will on the ground that the maker thereof was of unsound mind or that its execution was procured by the undue influence of the proponent. In the case at bar the factual situation as disclosed by the record is as follows: On May 27, 1952, Mrs. Bullock was admitted to the Sacramento County Hospital. At that time, she was between the ages of 80 and 84 years and weighed but 57 pounds. At the time of her admission, her history was 'unreliable.' She was listed as senile. She was suffering from cerebral arteriosclerosis and senility. She continued to be confined in the Sacramento County Hospital from the date of her admittance, May 28, 1952, until her transfer to Mercy Hospital, in Sacramento, on June 7, 1952.

It was established at the trial by the Sacramento County Hospital records, and through the testimony of witnesses, that from the period of May 27, 1952 until June 7, 1952, and actually subsequent to that time, Mrs. Bullock was at death's door.

Mrs. Bullock was seen for the first time by Dr. Frank Warne Lee, a duly licensed physician, of Sacramento, California, who had practiced there since 1927, on June 7, 1952, at Mercy Hospital. Dr. Lee was not only a well qualified physician, he had treated Mrs. Bullock as a patient since May of 1949, had known her for many, many years when she formerly had been his neighbor, but also continued to treat her as her physician from June 7, 1952 until the date of her death on June 24, 1953. He is also a doctor who specializes in treating the aged. Dr. Lee testified variously as follows: 'Mrs. Bullock remained mentally incompetent from June 7, 1952, to the date of her death,' 'she suffered from cerebral arteriosclerosis and encephalomalacia softening of the brain.'

She suffered from the medical conditions just described when Dr. Lee first saw her as a patient in May of 1949. The doctor testified in great detail as to his findings on June 7, 1952, which included that Mrs. Bullock was then suffering from 'severe malnutrition' but in the interest of saving expenses, he testified he had her transferred to St. Ann's Nursing Home in Sacramento, on June 10, 1952. He continued to see Mrs. Bullock quite often during the subsequent years, while visiting other patients he had at St. Ann's, but he kept his official visits to her, and likewise his charges, limited to...