Estate of Truckenmiller

• Decision Date: 27 September 1979
• Citation: 158 Cal.Rptr. 699,97 Cal.App.3d 326
• Parties: ESTATE of Kenneth R. TRUCKENMILLER. Bruce TRUCKENMILLER, Administrator with Will Annexed of Estate of Kenneth R. Truckenmiller, Deceased, Appellant, v. Norma Faye WELLS and Clarence Wells, Respondents. Civ. 54712.
• Court: California Court of Appeals Court of Appeals

Page 699

158 Cal.Rptr. 699

97 Cal.App.3d 326

ESTATE of Kenneth R. TRUCKENMILLER Bruce TRUCKENMILLER, Administrator with Will Annexed of Estate of Kenneth R. Truckenmiller, Deceased, Appellant, v. Norma Faye WELLS and Clarence Wells, Respondents.

Civ. 54712.

Court of Appeal, Second District, Division 1, California.

Sept. 27, 1979.

MacDonald, Halsted & Laybourne, Orville A. Armstrong, Jr. and Michael K. Maher, Los Angeles, for appellant.

Preston J. Kline and J. Paul Spector, Beverly Hills, for respondents.

ROTHMAN, ^* Associate Justice.

The administrator of an estate sought to set aside an inter vivos gift which decedent (Truckenmiller) allegedly gave as the result of the undue influence of the gift's recipients (Mr. and Mrs. Wells). Judgment was rendered for the recipients and against the administrator. The administrator appeals, contending that the trial judge erred in refusing to admit testimony at the trial to the effect that decedent told two people before he died that he had been "tricked" into the gift by the recipients.

THE FACTS

In 1972, Kenneth R. Truckenmiller was a 68-year-old widower in poor physical health, but not mentally weak. He lived with a housekeeper, Bernice Synagogue, and knew defendant Norma Faye Wells for over three years. Mrs. Wells was married and living with her husband, defendant Clarence Wells. Mrs. Wells and Mr. Truckenmiller were close friends, and Mr. Truckenmiller would meet Mrs. Wells at her home several days each week during the horse racing season while her husband was away at work. Mr. Truckenmiller and Mrs. Wells would then go to the races together.

In January of 1972 Mr. Truckenmiller transferred 300 shares of Sears, Roebuck & Co. stock (worth about $30,000) to himself and Mrs. Wells as joint tenants. A short time later the stock certificates were endorsed and sold, and the proceeds were deposited in Truckenmiller's account at the Bank of America on February 18, 1972. Most of the proceeds of this account were then used to purchase a five unit building, with himself and Mrs. Wells as joint tenants. On April 27, 1972, decedent paid off the mortgage on the building. The total cost of the apartment building to decedent was approximately $68,000. He died on April 30, 1973, and Mrs. Wells claimed title as a surviving joint tenant.

When Truckenmiller died he left an estate of something over $100,000. His last will, dated March 2, 1959, left specific cash bequests to Viciente Lopez and Bernice Synagogue, and the residue to his surviving relatives (his siblings and their children). The will was admitted to probate. The Administrator with Will Annexed filed a petition on behalf of the estate to establish a claim against certain property in the possession of Norma Faye Wells and her husband, Clarence Wells. In the first cause of action, it was alleged that in 1969 Truckenmiller gave property to the Wells as the result of the exercise of undue influence over decedent by Mrs. Wells. The second cause of action alleged that the Wells unlawfully obtained property from decedent.

In trial Mrs. Wells claimed that the gift was given to her out of love and friendship for her and Mr. Wells. Petitioner claimed that the transaction was the consequence of pressure on decedent by Mr. and Mrs. Wells because they had placed Truckenmiller in a compromising situation.

In the trial without a jury the court excluded the testimony of Mrs. Leah Lamb Poyet and Mrs. Bernice Synagogue. The testimony of Mrs. Poyet, decedent's friend, would have been that within a year before Mr. Truckenmiller's death she met him at Los Alamitos Race Track. He told her "he had bought a duplex; he was tricked into it . . . by this friend of his and her husband." On another occasion, "He told me he had been tricked into buying a duplex, and he wanted an attorney and wanted to know if my husband (Mrs. Poyet's husband was a lawyer) would call him."

The testimony of Mrs. Bernice Synagogue, decedent's housekeeper for over 20 years, would have been that Truckenmiller told her that he bought an apartment house for Mrs. Wells. When Mrs. Synagogue asked why, "Then he said, 'I have been tricked.' And he said, 'Bernice, I cannot tell you anything about it right now.' " When she asked what he meant by being tricked, "He said, 'Well,' he says, 'I have he caught me in the bed with his wife, Mr. Wells did.' " And further, "He said, 'Please don't talk to me any more about it, because I'm very hurt.' He says, 'I can't talk to you about it.' " She testified that Truckenmiller then fell across the bed and she had to get him some oxygen. In ruling in favor of the defendant's motion for judgment after the petitioner's case under Code of Civil Procedure section 631.8, the trial judge said that he believed that Truckenmiller made the statements to Mrs. Poyet.

In this appeal, petitioner's sole contention is that the court committed prejudicial error in excluding the above described testimony of Mrs. Poyet and Mrs. Synagogue.

DISCUSSION

In California: "The consent of the parties to a contract must be: . . . free; . . . " (Civ.Code, § 1565.) ¹ "An apparent consent is not real or free when obtained through: . . . Undue influence; . . . " (Civ.Code, § 1567.) "Undue influence consists: (P) 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; (P) 2. In taking an unfair advantage of another's weakness of mind; or, (P) 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress." (Civ.Code, § 1575.)

Plaintiff's petition alleged that Mrs. Wells obtained the property from Mr. Truckenmiller in that she "gained undue and controlling influence over the decedent's mind and action, whereby his natural and free will was overborne and her own will substituted for it. . . ." ²

Even though Mr. Truckenmiller was of sound mind, and even though there may not have existed a relationship of trust or confidence, a case for undue influence could be made from a showing that the donee had been coerced into giving the gift by some threat as the result of catching the donee in an indiscretion: i. e., the taking of "unfair advantage of another's . . . distress." (See McIntosh v. McIntosh, 209 Cal.App.2d 371, 26 Cal.Rptr. 28, a document executed under circumstances where person was under fear of beatings and threats; and Helmick v. Thomas, 187 Cal.App.2d 395, 9 Cal.Rptr. 512, an agreement obtained by threat.)

Accordingly, the donee's state of mind at the time of the gift or deed would be an issue in an action where undue influence was alleged. For example, under subdivision 1 of Civil Code section 1575, a showing that one held authority over another for the purpose of securing an unfair advantage would, in part depend on proof as to the person's mental state. So too, under subdivision 2, of Civil Code section 1575, weakness of mind could obviously be shown by evidence of state of mind, and under subdivision 3, the state of mind of an individual would bear on whether an unfair advantage was taken.

An out-of-court declaration of the then existing state of mind of declarant or of his state of mind at any other time is admissible to prove the existence of the past state of mind so long as: the declarant is unavailable, there are no circumstances indicating a lack of trustworthiness in the statements, the state of mind is an issue in the case, and the declaration is not used to prove directly or circumstantially declarant's acts or conduct in conformity with that past state of mind, or to prove the fact remembered or believed in the declaration. (Evid.Code, § 1250- 1252 Jefferson, Cal. Evidence Benchbook (1972) State of Mind or Physical Sensation, § 14.3, p. 179.) ³

The trial court here erroneously concluded that a declaration as to a state of mind at a time prior to the making of the declaration was inadmissible. In Whitlow v. Durst, 20 Cal.2d 523, 524, 127 P.2d 530, 531, the court held that "When intent is a material element of a disputed fact, declarations of a decedent made after as well as before an alleged act that indicate the intent with which he performed the act are admissible in evidence as an exception to the hearsay rule, . . ." In explaining this exception, the Supreme Court stated in People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 621, 290 P.2d 538, 543, that this rule exists ". . . apparently on the theory that under these particular circumstances '(t)he stream of consciousness has enough continuity so that we may expect to find the same characteristics for some distance up or down the current.' "

Although the power of a person's state of mind at a given point might fade with the passage of time, there are no set time limits on declarations of past state of mind. We deem it to be a question for the trier of fact as to whether in a given case under all the circumstances the "stream of consciousness" was intact or had been broken by the passage of time. In the instant case, there might well have been a sufficient basis in the record for a finding to support a "stream of consciousness," but the court never considered the question.

Moving, then, to the statements themselves, the decedent is alleged to have said that he had been "tricked" into buying the property a year earlier, and that Mr. Wells caught him in bed with Mrs. Wells. When the statements were made, Mr. Truckenmiller said that he was "very hurt" and he showed signs of distress concerning the subject. He also asked about consulting a lawyer.

Three of the elements for admissibility are easily met under the Evidence Code provisions set out above. The declarant was dead and unavailable, there was no circumstance such as to indicate a lack of trustworthiness, and the declarant's past state of mind was an issue in the case. The only element remaining is whether or not the declarations...