Ferris' Estate, In re

• Decision Date: 28 October 1960
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Mildred C. FERRIS, Deceased. Margaret BRESSLER, Contestant and Appellant, v. Albert H. ALDERTON, Proponent and Respondent. Civ. 24470.

Page 553

8 Cal.Rptr. 553

185 Cal.App.2d 731

In the Matter of the ESTATE of Mildred C. FERRIS, Deceased.

Margaret BRESSLER, Contestant and Appellant, v. Albert H. ALDERTON, Proponent and Respondent.

Civ. 24470.

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

Oct. 28, 1960.

Marcus, Rabwin, Nash & Naiditch and A. P. Coviello, Los Angeles, for appellant.

Elbert Heiserman and A. Maurice Rogers, Jr., Los Angeles, for respondent.

BISHOP, Justice pro tem.

It might be said that the evidence requires, it most certainly gives substantial support to, the trial court's findings that the mutual will of contestant's parents, which upon her father's death became the will of her mother, was not subject to any of the defects alleged in the Contest of Will. As a consequence, we are affirming the judgment admitting the will to probate, from which the contestant has appealed.

The contestant was not lacking in audacity in her attack upon the will. She affirmatively alleged: That the will offered was not the last will of her mother; that it had not been subscribed by her in the presence of the alleged subscribing witnesses; that it had not been declared by her to be her will; and that, if it was signed by her mother, it was under duress, restraint, undue influence, and fraudulent representations and statements on the part of Albert H. Alderton, the contestant's mother's brother, to whom all of her estate was left, save the one dollar that went to the contestant.

It is quite apparent that the contestant swore falsely when she verified the pleadings that initiated the contest, in stating that its allegations were true of her own knowledge. Not only were there witnesses at the trial who positively identified the will offered as the one signed by Mr. and Mrs. Ferris, the contestant's parents, who testified that her parents each declared the will to be their will and that each had signed it in the presence of the witnesses, but the contestant was not among those present at the signing of the will, and so could not 'of her own knowledge' state what had then occurred. Nor did she produce any evidence that cast doubt upon that given, and as a witness she admitted that she knew of no later will. The credibility of one who so readily swears falsely may well have been doubted.

Beyond question the only serious attack upon the will was made on the ground that it was the product of undue influence. We are told what 'undue influence' is, as applied to the making of a will, in Estate of Welch, 1954, 43 Cal.2d 173, 175, 272 P.2d 512, 514: 'In Re Estate of Arnold, 16 Cal.2d 573, at page 577, 107 P.2d 25, at page 27, the rules governing the determination of whether a testamentary instrument is the product of undue influence are stated as follows: 'In an action to set aside a will of a deceased person on the ground of undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testator's free agency and substitute for his own another person's will. In re Estate of Motz, 136 Cal. 558, 583, 69 P. 294. Evidence must be produced that pressure was brought to bear directly upon the testamentary act. In re McDevitt's Estate, 95 Cal. 17, 33, 30 P. 101. Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator. In re Estate of Keegan, 139 Cal. 123, 127, 72 P. 828. * * * mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient. In re Estate of Easton, 140 Cal.App. 367, 371, 35 P.2d 614.

"'The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of 'a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made.'' (In re Estate of Gleason, 164 Cal. 756, 765, 130 P. 872.' (Citing cases.)'

'Undue influence,' obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be deduced. It makes little difference, in this case, whether we review the evidence most favorably to the finding of the trial court, as of course we must, or most favorably to the defeated contestant; it does not warrant the conclusion that the will in question was the result of undue influence.

Certain facts appear beyond any serious dispute; most of them from the contestant's own lips. She was married to Mr. Bressler in July of 1946. The place where her parents lived had been acquired by a deed which made the parents and the contestant joint tenants. Just before her marriage she conveyed to her parents her interest in the property because, as she testified, '* * * there was a ruckus because I was going to marry Mr. Bressler and my mother and father just made it so impossible I said 'All right, I will sign it.''

Thereafter, sometime in 1947 or 1948, the contestant and her husband built and moved into an apartment next to that of her parents. The...