Fosselman's Estate, In re

• Decision Date: 22 March 1957
• Citation: 308 P.2d 336,48 Cal.2d 179
• Court: California Supreme Court
• Parties: In re FOSSELMAN'S ESTATE. In the Matter of the Estate of Willinore M. Fosselman, Deceased, Harriet Palmer, Petitioner and Appellant, Charles F. Salkeld, as Executor of the Last Will and Testament of Willinore M. Fosselman, Deceased, and Adele Marsh Rowe, Contestants and Respondents. L. A. 24145.

Page 336

308 P.2d 336

48 Cal.2d 179

In re FOSSELMAN'S ESTATE In the Matter of the Estate of Willinore M. Fosselman, Deceased Harriet Palmer, Petitioner and Appellant Charles F. Salkeld, as Executor of the Last Will and Testament of Willinore M. Fosselman, Deceased, and Adele Marsh Rowe, Contestants and Respondents.

L. A. 24145.

Supreme Court of California, In Bank.

March 22, 1957.

George R. McClenahan, San Diego, for appellant.

Luce, Forward, Kunzel & Scripps and Edgar A. Luce, San Diego, for respondents.

TRAYNOR, Justice.

Harriet Palmer filed a petition for probate of two holographic documents claimed to be codicils to the last will and testament of Willinore M. Fosselman. One reads:

'I give and bequeath to my friend, Harriet Palmer, the sum of ten thousand 10,000 June 17th 1953 to be paid to her after my death (death).

Willinore M. Fosselman

4656-49th St.

San Diego, Cal.'

The other reads:

'Jan. 12th, 1955

When I die, I want this house to be given to Mrs. Harriet Palmer for her to live in if she chooses.

Willinore Fosselman

4656 49th St.'

Charles F. Salkeld, as executor, and Adele Marsh Rowe, residuary legatee under the will, contested and admission of these documents to probate on the ground that Mrs. Fosselman lacked the mental capacity to make a valid codicil at the times she executed them.

After a trial without a jury the court found:

'* * * that at the time said two purported codicils * * * were written, dated and signed, and continuously up to the death of said decedent, she was suffering from senile dementia and was of such mental incompetency as to render her incapable of executing a Will, and was suffering from an insane delusion to the effect that Harriet Palmer was an old family retainer who had been in her family many years previously, and was a very old friend; and that in fact the said decedent actually had known the said Harriet Palmer as an employee of only a few months standing when the said delusion became fixed, which said delusion was the effective cause of the execution of said instruments and which instruments would not have been executed by the said testator were it not for the said insane delusion.' (Finding VII.)

'* * * that at the time of the execution of each of said instruments and continuously up to the time of her death the said decedent was mentally incompetent to execute a Will or codicil and had not sufficient mental capacity to be able to understand the nature of the acts she was doing nor to understand and recollect the nature and situation of her property or her relation to the persons who had claims upon her bounty. * * *' (Finding VIII.)

Accordingly, the court entered judgment denying the admission of the two documents to probate. Petitioner appeals on the ground that the findings of the trial court are not supported by substantial evidence.

Prior to April, 1950, Mrs. Fosselman resided in New York City. She maintained with the Bankers Trust Company a securities-custodian account, which at the time of her death was of the approximate value of $460,000. The account was under the supervision of Charles F. Salkeld, a vice-president of the company, upon whom she came to rely for personal and business advice. In New York, Mrs. Fosselman was considered to be intelligent and quite alert for her age.

In April, 1950, Mrs. Fosselman moved to San Diego, California, intending to make her home there. Shortly after her arrival in San Diego, she tripped and fell in a hotel lobby and suffered a broken hip. She was treated by Dr. R. L. Hippen and removed to Mercy Hospital, where she remained for about seven weeks. While in the hospital she executed a will disposing of her entire estate and appointing Mr. Salkeld executor. At about the same time she asked Mr. Salkeld and Ralph Bullock, her New York attorney, to take charge of her financial affairs, and to that end she gave Mr. Bullock a general power of attorney. Edgar A. Luce was appointed her local attorney and charged with the management of her affairs in San Diego. Thereafter all bills were presented to Mr. Luce, who transmitted them to New York for payment. A small checking account, the balance not to exceed $500, was established in Mrs. Fosselman's name in a San Diego bank. Mrs. Fosselman drew checks on that account for miscellaneous items until shortly before her death. On several occasions Mr. Bullock thought it advisable to obtain Mrs. Fosselman's consent to the transfer of funds or securities, and for that purpose Mr. Luce obtained Mrs. Fosselman's signature.

Upon her release from the hospital, Mrs. Fosselman was moved to a house, purchased with her funds, at 4656 49th Street in San Diego. She was attended throughout the day and night by three nurses working in shifts of eight hours each. A chauffeur was employed to take her on afternoon drives. Dr. Hippen remained her physician and visited her occasionally. Mr. Luce visited her on the average of once a week.

Petitioner was one of the nurses employed to care for Mrs. Fosselman. She had served originally as a relief nurse, but upon the death of one of the regular nurses in 1952, she was employed to attend Mrs. Fosselman regularly during the hours from 7 a. m. to 3 p. m., and she served in that capacity until Mrs. Fosselman's death. It is undisputed that Mrs. Fosselman appeared to be found of petitioner. It is also undisputed that Mrs. Fosselman appeared to be equally fond of the other nurses.

Mrs. Fosselman died on March 25, 1955, at the age of 88 years. She was the last survivor of a family of ten children and left as surviving relatives only nieces and nephews.

The purported codicil dated June 17, 1953, was first discovered after Mrs. Fosselman's death. Petitioner testified that she had been requested to clean out Mrs. Fosselman's desk and that in doing so she found a sealed envelope wrapped in tissue. The purported codicil was in the envelope. Petitioner testified that she had no knowledge of it before that time.

The purported codicil dated January 12, 1955, was delivered to petitioner by Mrs. Fosselman during her lifetime. Petitioner testified that on January 12, 1955, Mrs. Fosselman stated that there was something she wanted to do before she forgot it and that Mrs. Fosselman handed her a piece of paper, stating, 'Here, honey, you read this.' Petitioner read it and replied, 'Well, you don't have to do anything for me,' and Mrs. Fosselman said, 'Well, I know it. Do you think it is all right?' Petitioner replied, 'Yes, it is.' Mrs. Fosselman then stated, 'Now, if you don't think this is all right, you take it to a lawyer and have it checked.' Mrs. Fosselman then took the paper to the living room and later returned and handed petitioner a sealed envelope, stating, 'Now, you are not to open this until after I die or pass away.' She opened the envelope after Mrs. Fosselman's death and found that it contained the paper that Mrs. Fosselman had shown her.

Petitioner testified that on January 12, 1955, Mrs. Fosselman seemed to be aware of what she was doing, that her conversations were logical and reasonable, and that there was nothing in her conduct that would suggest that she was insane. 'She was just like she had always been.' With respect to Mrs. Fosselman's mental condition on June 17, 1953, petitioner gave her opinion that Mrs. Fosselman was not insane, that in the middle of 1953, Mrs. Fosselman seemed to be aware of what was going on in the world, who her relatives were, and that she had some property. Petitioner admitted that Mrs. Fosselman thought that she had known petitioner in Kansas City as an employee of Mrs. Fosselman's mother and that they were old friends; that when petitioner would correct her and explain that such was not the case, Mrs. Fosselman would say, 'Now, that's right,' but would subsequently reassert that she had known petitioner in Kansas City; that Mrs. Fosselman sometimes thought she was in New York; that she sometimes did not know that she owned the 49th Street house, but thought that she rented it from a landlord who was demanding an increase in rent; that she often felt that she did not have sufficient money to pay the household help; that she repeated herself constantly; and that Mrs. Fosselman insisted that the nurse who died in 1952 had stolen some chairs that in fact had been given away by Mrs. Fosselman in New York. Petitioner did not think that this behavior was illogical or irrational. She testified that she would not consider a person insane unless he was totally unconscious of his environment.

Several women who were neighbors of Mrs. Fosselman and who had visited her occasionally during the last five years of her life testified that she was able to converse with them about simple domestic matters and that she was not insane.

Mr. Salkeld visited Mrs. Fosselman five times during the last five years of her life. He testified that her mental condition started deteriorating in October, 1950, and that from that time until her death she became progressively confused. He testified that she remembered old events but nothing recent; that at times she thought she was in New York; that she constantly thought she did not have enough money and that when he tried to explain her property to her, she could not 'absorb it'; that she thought she had once owned a house in New York and wondered what had become of it, although she had never owned a house there; that she referred to her deceased brothers as being alive; and that on his last visit in March, 1954, he went to see her on the afternoon of one day and the morning of the next day, but Mrs. Fosselman was unable to recognize him. It was his opinion that from the fall of 1952 until the time of her death Mrs. Fosselman was unable to comprehend the nature and extent of her property or her relation to those who would be the natural objects of her bounty.

Mr. Luce recounted in detail his weekly visits with Mrs. Fosselman. He testified that except for one occasion, on January...