Evans' Estate, In re

• Decision Date: 20 June 1969
• Citation: 274 Cal.App.2d 203,79 Cal.Rptr. 1
• Parties: In the Matter of the ESTATE of Lulie Bowden EVANS, Deceased. Ray C. Danny DOWLING, Petitioner and Appellant, v. Jean B. NEWMAN, Marjorie Mattison, Hugh Morison, Louise Anderson, Doreen Livingstone, Neil Bowden and Ian Bowden, Contestants and Respondents. Civ. 33952.
• Court: California Court of Appeals Court of Appeals

Page 1

79 Cal.Rptr. 1

274 Cal.App.2d 203

In the Matter of the ESTATE of Lulie Bowden EVANS, Deceased.

Ray C. Danny DOWLING, Petitioner and Appellant, v. Jean B. NEWMAN, Marjorie Mattison, Hugh Morison, Louise Anderson, Doreen Livingstone, Neil Bowden and Ian Bowden, Contestants and Respondents.

Civ. 33952.

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

June 20, 1969.

Rehearing Denied July 16, 1969.

Hearing Denied Aug. 13, 1969.

Sam Houston Allen, Van Nuys, for appellant.

Meserve, Mumper & Hughes, and Thomas P. Phillips III, Los Angeles, for respondents.

LILLIE, Associate Justice.

Appellant, unrelated by blood or otherwise to decedent, a widow without children, offered for probate a will executed by her on May 19, 1967; she died later that same day, aged 84 years or thereabouts. Thereunder, save for three bequests of $1.00, appellant was named the sole beneficiary of an estate valued at approximately $40,000. The document was contested on the four statutory grounds (Prob.Code, § 371) by her sister, nephews and nieces. The trial court found that while decedent was of sound and disposing mind and the document was executed in the manner and form prescribed by law, decedent's will was made and executed as a direct result of the undue influence exercised by appellant. He appeals from the judgment denying probate; his sole contention is that there was no evidence, either direct or circumstantial, to sustain the finding of overreaching.

A detailed summary of pertinent facts becomes necessary in light of appellant's claim. He first met decedent before her husband's death which occurred in 1948 or 1949; they were neighbors in Burbank. After Mr. Evans' death, decedent moved to Hollywood where she lived for almost 20 years. During her residence in that area, she and appellant were either neighbors or lived in the same apartment building. There was testimony that appellant helped Mrs. Evans financially with small cash contributions, it appearing that she was then dependent on a small income from a voluntary trust established by her late husband's relatives in Philadelphia. Often she would give appellant checks by way of repayment, but these checks were never cashed. There was also testimony that he helped her with shopping and transportation, occasionally taking decedent to the beaches and other resort areas.

In 1966 appellant married a rather close acquaintance of decedent, the latter being present at the wedding ceremony. Thereafter she was on occasion a guest in appellant's home. It further appears that appellant had a standing order for the delivery of flowers to decedent each weekend. In December of 1966 decedent received some $40,000 to $45,000 in cash from the estate of her deceased husband. She gave appellant a check, blank as to amount, with the request that he fill it in for an amount dictated by his own discretion; this he never did. Prior to the receipt of such inheritance, says appellant in his brief, 'There is no direct evidence that * * * he had any knowledge that she was destined one day to inherit any considerable sum of money, and the circumstances to support such an inference are negligible.'

A friend of appellant, Mr. Laley, testified that he knew the decedent for five years, seeing her three or four times a week. About a year before her death, she told him that 'if it hadn't been for Danny, she wouldn't be around to enjoy her inheritance.' To another witness for appellant decedent spoke of her friendship with proponent and his kindness to her; in a conversation with the same witness she was also critical of her relatives, stating that on holidays she would 'stay in all day and no one would come to see her' except appellant who would bring her 'a holiday dinner.' About six months before her death, she told Mr. Laley that 'she didn't see why, since (Danny) was the only one who helped her, she couldn't do as much for him and she said that she intended to leave whatever she had to him.'

All of the above circumstances, it is urged by appellant, tend to dispel certain of the usual indications of undue influence--that the provisions of the will are unnatural and at variance with the previously expressed intentions of the decedent (Estate of Lingenfelter, 38 Cal.2d 571, 585, 241 P.2d 990); thus, there is nothing unnatural or unusual when a testatrix gives an old friend a share in her estate (Estate of Darilek, 151 Cal.App.2d 322, 331, 311 P.2d 615) or leaves her estate to an intimate friend in preference to her relatives whom she seldom saw. (Estate of Bullock, 140 Cal.App.2d 944, 950, 295 P.2d 954, 297 P.2d 633.)

Somewhat reflecting the other side of the coin, the court made a finding that 'decedent's relatives within the second degree * * * had shown the decedent kindness and affection during her declining years * * *.' Appellant filed objections to this and other proposed findings, but the portion above quoted was allowed to stand. While the evidence adduced on this phase of the litigation was rather meager, certainly it cannot be said that there was any estrangement between the parties involved. Mrs. Mattison, a niece, was in touch with her aunt during the month of January 1967, thanking her for some gifts to the Mattison children. Decedent's sister, Mrs. Newman, testified at greater length concerning their social and other contacts. During her adolescence she and decedent lived with their mother; they came to this country from New foundland. Later Mrs. Newman married an engineer and accompanied him to the various cities where he was employed; when in California, she always visited her sister. In 1964 she settled permanently in Newbury Park where decedent was a guest in her home. They would see each other seven or eight times a year, exchanging holiday greetings at Christmas, Easter and on birthdays. On Christmas of 1964, they spent the day together. In 1966 and before decedent's receipt of the money that year from her husband's estate, Mrs. Mattison gave her one hundred dollars to meet the bill, assertedly overdue, of a Philadelphia storage company where her furniture was stored.

An attorney, Robert Meserve, also testified for the respondents. He first met decedent in 1948 or 1949 at the time of her husband's death. Subsequently his law firm probated her husband's estate; in the years following, income tax services were performed for decedent. In 1966 the Meserve law firm was in the process of closing out the second probate of her husband's estate which had to be reopened because of additional assets. In October of that year decedent was in contact with Meserve, as well as the Philadelphia trust company, to the effect that she had not been receiving her regular checks. It was established by Meserve that such payments had been regularly forthcoming, copies of checks received and endorsed by decedent having been sent to Meserve. In january of 1967, after the distribution to decedent of the lump sum remaining in her husband's estate Meserve received a call from the local telephone company regarding decedent's bill overdue for many months. When he contacted decedent, she admitted the bill's delinquency; she claimed that she did not have any money to pay it, although he reminded her that she then had ample funds to satisfy such obligation. Meserve further testified that before the balance of her husband's estate was finally distributed to her, the income from the Philadelphia trust was approximately $350.00 each month.

At the request of Eastern relatives (apparently of her deceased husband), and shortly after the conversation about the delinquent phone bill, Meserve contacted the decedent about the investment of her cash, mentioning the possibility of a withdrawal account in some mutual fund. The investment plan was discussed with on officer of the Bank of America whom decedent knew. Although she told those concerned to proceed with the plan, she later advised Meserve that she did not want to sign the papers after arrangements had been made with the broker and after certain securities had been ordered. At or about this time, according to Mrs. Newman, it was also suggested by Meserve that Mrs. Newman apply for letters of guardianship; decedent told her sister that she thought she could manage her own business, and nothing further was ever done in that regard. Subsequently, on March 10, 1967, Meserve wrote decedent and proposed the preparation of a will; to such communication she did not respond.

On either April 26 or 27, decedent's family doctor, Dr. Huffman, was called to her apartment where he found her lying on the floor; she was propped up against an overturned stool. After giving her a stimulant, he suggested that her relatives be called. Mrs. Newman then took decedent to her Newbury Park home where she remained overnight. The next day Mrs. Newman brought her sister back to the latter's apartment; she remained with her that night and the night following. At an early morning hour, hearing a thud, Mrs. Newman went into decedent's room and found that the latter had fallen onto the floor. Upon Dr. Huffman's order, decedent was admitted to a Los Angeles hospital later that morning (April 30).

On the date of decedent's admission, the following patient's 'History' pertinent here was signed by Dr. Huffman for inclusion in the hospital records: 'Unable to give history. Remarks are not pertinent or responsive. Memory defect. Found on the floor fully clothed and sleeping. Seemed lethargic when awakened. * * * Neighbors say she had been acting peculiarly for several months. Will let no one into her apt. friends or relatives.' His 'Progress Notes' for the same day (April 30) stated that for at least two days decedent had been disoriented more or less, that she ate but little and that malnutrition was obvious. On May 3 Dr. Paul Northrup, specializing in neurological surgery, was asked by Dr. Huffman to examine decedent. Several neurological studies on May 8 disclosed that decedent...