Estate of Bullock
| Decision Date | 20 April 1956 |
| Citation | 295 P.2d 954,140 Cal.App.2d 944 |
| Court | California Court of Appeals Court of Appeals |
| 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. |
Busick & Busick, Sacramento, for appellant.
Bradford, Cross, Dahl & Hefner, Sacramento, for contestants.
This is an appeal from a judgment denying probate of the last will and testament of Ermina Bullock, deceased, whom the jury by its verdicts found was of unsound mind and under the undue influence of 'another person' at the time of its execution. Appellant maintains that the evidence is insufficient to support the verdicts and the judgment entered thereon.
The testatrix died on June 24, 1953 as the result of a cerebral hemorrhage. She was then approximately 83 years of age and had been a widow for ten or fifteen years. Her heirs at law were her brother and two sisters, the respondents herein, all of whom lived in Iowa and whom, apparently, she had not seen for many years. The testatrix' holographic will, the probate of which was contested by respondents, was executed on December 31, 1952. By it she left her entire estate to the appellant who was her closest friend and whom she had known for approximately 40 years. The testatrix' home, in which she lived alone, was two or three blocks from that of appellant and her husband. They saw her on the average of three or four times a week and were very kind to her. She depended upon them to take her to the meetings of the Rebekah Lodge in which lodge she and appellant had been very active in past years. The lodge appears to have been the testatrix' main interest in later life. She liked to recall the lodge conventions which she and appellant had attended together and past and present affairs of the local branch were the main topic of her conversations with members who visited her during her last illness which was of more than a year's duration.
On May 27, 1952 the testatrix telephoned appellant's husband and said that she did not feel well enough to attend a lecture to which he and appellant had planned to take her that evening. Appellant's husband went to see if there was anything he could do for the testatrix but she assured him that she was not ill and would be all right. However, later in the day, a neighbor became alarmed and had the testatrix taken by ambulance to the county hospital where she remained until June 6th. On May 29th the testatrix asked appellant's husband to have Mr. Busick, a local attorney, come to the hospital to draw her will. Mr. Busick had known the testatrix for over 40 years and had been her husband's lawyer. On June 6th appellant's husband brought Mr. Busick to the hospital to see the testatrix. She informed him that she wished to make a will leaving everything to appellant and her husband. Mr. Busick testified that he asked appellant's husband to leave the room so that he might talk to her privately. He asked her if she did not wish to leave something to the Odd Fellows or to the Odd Fellows Home for which her husband had been a trustee for many years. She replied that she did not and repeated that she wished to leave everything to appellant and her husband. Mr. Busick then wrote out a will which so provided and read it to her. A social worker at the hospital was called in and she and Mr. Busick witnessed the will which the testatrix signed with an 'X', presumably because she was too weak to write her name. It should be here observed that although this will was not offered for probate, much of the evidence upon which the respondents rely to support the jury's findings of mental incapacity and undue influence relate to the time of its execution rather than to December 31, 1952, the date of the testatrix' later holographic will, which is the subject of the present controversy.
On June 7th, at the testatrix' request, appellant's busband contacted Dr. Lee, who had formerly acted as her physician, and had him arrange for the testatrix to be transferred to Mercy Hospital where she remained until June 11th, when, at Dr. Lee's suggestion, she was moved to a nursing home where she remained until her death more than one year later. The proprietress of the nursing home testified that the testatrix was in a semi-conscious condition on the day of her admittance to the home but that, considering her age, she showed great physical improvement and 'clered up quite rapidly to where she responded and talked, and swallowed.' However, this witness testified that she considered the testatrix incompetent at all times because she was repetitious and childish, never seemed to ask any questions about current events, only remembered things pertaining to the past, and would not discuss what she was reading but would merely shrug and remark: 'Well, it passes the time'. The witness stated that the testatrix recognized people and conversed with her visitors about members and meetings of the lodge and appeared to remember some of it; further that she had no difficulty in making the testatrix understand things if she got her full attention.
Dr. Lee testified that on June 7, 1952, when the testatrix was transferred to Mercy Hospital, she was very ill, incoherent, confused, and incompetent to make a will; she was very frail, weighing at the most 73 pounds, and suffered from arteriosclerosis with cerebral encephalopathy (softening or damaging of the brain), high blood pressure, lack of bladder control, partial deafness, and malnutrition; that due to the nature of her illness, which causes progressive brain degeneration, a condition which can neither be cured nor improved, he was firmly convinced the testatrix was incompetent to make a will at all times between June 7, 1952, when he first saw her and June 24, 1953, when she died. However, he also said that the only calls for which he charged her during that period were made on June 11th, 16th, 18th, 25th and August 4, 1952 and on February 9th and June 18, 1953. He had no record of having seen her on or near December 31, 1952, the date of her holographic will. Dr. Lee explained that he did not see testatrix more frequently as her condition was such that he could do little for her. On the average of once a month he would stop at her door and pass the time of day when he was at the nursing home to see other patients. He said the testatrix recognized him and would wave when she saw him walking down the hall and on one occasion inquired about his father-in-law whom she had known. Dr. Lee discounted this by drawing an analogy to a dog who would recognize him but who was not competent to make a will. He testified that he believed the testatrix was mentally incompetent because she was repetitious,...
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Goetz' Estate, In re
...(Estate of Jamison, 41 Cal.2d 1, 13, 256 P.2d 984; Estate of Glass, 165 Cal.App.2d 380, 383--384, 331 P.2d 1045; Estate of Bullock, 140 Cal.App.2d 944, 948, 295 P.2d 954, 297 P.2d 633.) Nor was it without elements of weakness. Dr. Reed wrote to respondent on October 26, 1963, that at times ......
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Wolf's Estate, In re
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Fosselman's Estate, In re
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