French v. Mason

• Decision Date: 19 February 1964
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the Estate of Ethelyn French, Deceased. William FRENCH, Plaintiff and Appellant, v. Rosemarie G. MASON and Jane Sturgis, Defendants and Respondents. Civ. 21371.

Page 908

36 Cal.Rptr. 908

225 Cal.App.2d 9

In the Matter of the Estate of Ethelyn French, Deceased.

William FRENCH, Plaintiff and Appellant, v. Rosemarie G. MASON and Jane Sturgis, Defendants and Respondents.

Civ. 21371.

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

Feb. 19, 1964.

Warren C. Moore, San Jose, for appellant.

Rankin, Oneal, Luckhardt, Center Longinotti & Ingram, Maurice J. Rankin, Charles E. Luckhardt, Jr., San Jose, for respondents.

SULLIVAN, Justice.

In this will contest we hold that the document admitted to probate by the court below is supported by the necessary testamentary intent and satisfies the statutory requirements for a valid holograph. Additionally, we conclude that the record sustains the court's finding that the will in question was not the rroduct of undue influence. We therefore affirm the judgment.

The pertinent facts follow. Decedent, Ethelyn French, died in San Jose on April 22, 1962, at the age of approximately seventy-five years. She was survived by three children: William French, appeallant herein, and Rosemarie Mason and Jane Sturgis, respondents herein.

She left a document entirely handwritten in ink on what appears to be a page of ruled note-book paper approximately three inches wide by five inches long. The contents of the document, written lengthwise on one side of the paper only, are set forth as follows: ¹

March 17, 1961

Jane

I want you to have this place my home. Thanks for helping. or in other words. You have done for me what none others would. It is yours and you can do as you please. You can give what you want to.

Your mother

To Jane Sturges from

Ethelyn French

On May 25, 1962, Rosemarie Mason filed in the court below a first amended petition for the probate of the aforesaid document and the issuance to her of letters of administration with the will annexed. ² William French thereupon filed a contest of the will on the grounds of decedent's unsoundness of mind, her lack of freedom from undue influence and of the lack of due execution of the document involved.

At the ensuing trial before the court sitting without a jury evidence was first offered by the proponent in order to make a prima facie showing of the execution of the will. To this end, Jane Sturgis, the sole beneficiary of the will, was called as the first witness. She was thereafter extensively cross-examined by appellant. The record clearly indicates that she was the principal witness in support of the will.

Jane testified on direct examination that on or about the date of the document in controversy, March 17, 1961, while she was serving her mother breakfast, the latter handed her the document, saying 'This is your house, and this is the will. I want you to take it and keep it in a safe place.' Thereafter Jane kept the will in her suitcase. She further testified that she had seen her mother write on many occasions over the years, that she was familiar with her handwriting, and that the document in question was entirely written, dated and signed in her mother's handwriting. ³

Her testimony on cross-examination, so far as pertinent here, can be summarized as follows: The decedent had suffered a broken hip in 1955. From time to time thereafter Jane made trips from her home in Arizona to San Jose in order to care for her mother. The decedent, likewise, visited Jane in Arizona. During the last three years of decedent's life, there was a close relationship between mother and daughter. Jane was with the decedent 'practically constantly.' It was probably a closer relationship than that existing between decedent and her other two children. During the last two years of decedent's life, Jane and the decedent maintained a joint bank account in San Jose; during the last year, Jane handled most of her mother's business for her. In December 1961, about four months before decedent's death, Jane was appointed her conservator. In January 1962, while Jane was in Arizona, the decedent suffered a stroke and was committed to Agnew State Hospital on arrangements allegedly made by appellant. Jane returned to California, secured her mother's discharge from the hospital, ⁴ returned her to her home in San Jose and remained with her until her death.

Prior to March 17, 1961, the decedent had never discussed her will with Jane although she had often said she was going to leave Jane her home. She handed Jane the will at about 10 a. m. on the day in question. Decedent was then in her bedroom sitting on the side of her bed and next to a bedside table. Jane had just brought her breakfast. She had seen her mother earlier that morning at about 6 a. m. when she served her tea and toast. In the interim her mother was resting.

Although Jane had been in and out of the room, she had not paid much attention to what her mother was doing. When asked 'Did you see her writing,' Jane replied: 'Well, I knew she had her pencil and paper. But I didn't know what she was doing until she handed it to me.' She testified however that she saw her mother sign her name to the document, that the latter then handed it to her with the remark 'I want you to keep this,' and that her mother never took the document back to make any corrections. Jane was unable to describe the pen used by her mother: 'She had all kinds of pens.'

Jane's testimony was corroborated to some extent by that of the decedent's sister, Angela Kerr, who testified that 'sometime in '61,' approximately in March or April, the decedent had mentioned to her that she had made a will for Jane to have the property. Mrs. Kerr also testified that the decedent repeatedly stated that 'Jane did the most for her.'

William French, the contestant and appellant herein, testified that he had seen his mother quite often between 1955 and 1961. However he had not seen her at all from March 1961 until her death. He denied having her committed to Agnew State Hospital and stated that he first learned of such fact after her death. He also stated that on one occasion his mother told him 'that Jane attempted to get her to sign the will over to her.' William's wife, Dorothy French, generally corroborated her husband's testimony that the decedent frequently visited her son. She testified to a relationship devoid of arguments and to decedent's desire that her three children should share her property equally. According to her, the decedent became forgetful in 1959 and in March 1961 seemed confused and 'was sort of like she was in a stupor.' Mrs. French was not cross-examined.

Lowell Bradford, an expert examiner of questioned documents, called as a witness by appellant stated that he had examined the document in controversy as well as samples of handwriting known to be the decedent's. He testified that it was his opinion that the body of the will, excepting the date March 17, 1961, at the top of the document, had been written by the decedent but that the date 'was written after the remainder of the writing.' The witness based this conclusion on his microscopic examination of the document which indicated that the ink of the word 'March' in the date 'lies on top of the other ink' of the word 'to' in the line immediately below. Bradford was unable to state whether or not the same person who had written the body of the document, had also written the date. ⁵

The trial court found, so far as is here pertinent, that the instrument offered for probate was entirely written, dated and signed in decedent's handwriting; that it was prepared with the intent that it would be effective as a will; that at the time of the execution of the instrument, the decedent was of sound and disposing mind; that at said time she was not suffering under any undue influence of Jane; that at said time 'her thought processes' were not impaired by ill health or advanced age; and that nothing more than a mother- daughter relationship existed between decedent and Jane which was not a confidential one. From its findings the court concluded that the instrument dated March 17, 1961, was 'a valid holographic Will executed by the decedent in the manner and form required by law and is entitled to be admitted to probate'; that no undue influence was exercised upon decedent by Jane or any person; that decedent was of sound mind; that the instrument in question was her last will; and that the petitioner Rosemarie Mason was entitled to letters of administration with the will annexed. Judgment was rendered accordingly.

Appellant contends here that (1) the instrument is not a will, since there was no testamentary intent; (2) the instrument is not a valid holograph, since it is not dated in the decedent's handwriting; and (3) the proponent failed to rebut a prima facie presumption of undue influence. As we indicated at the outset, none of these contentions have merit.

Our determination of the first issue is governed by the following principles: 'Before an instrument may be probated as a will it must appear from its terms, viewed in the light of the surrounding circumstances, that it was executed with testamentary intent. The testator must have intended, by the particular instrument offered for probate, to make a revocable disposition of his property to take effect upon his death.' (Estate of Sargavak (1950), 35 Cal.2d 93, 95, 216 P.2d 850, 851, 21 A.L.R.2d 307 and cases there collected.) 'No particular words are necessary to show a testamentary intent but it must satisfactorily appear from the document offered as the last will and testament that the decedent intended, by the very paper itself, to make a disposition of his property after his death in favor of the party claiming thereunder.' (Estate of Wunderle (1947), 30 Cal.2d 274, 280-281, 181 P.2d 874, 878, citing Estate of Button (1930), 209 Cal. 325, 331, 287 P. 964; Estate of Kelleher (1927), 202 Cal. 124, 129, 259 P. 437, 54 A.L.R. 913; Estate of Branick (1916), 172 Cal. 482, 484, 157 P. 238; Estate of Pagel (1942), 52 Cal.App.2d 38, 44, 125 P.2d 853.) 'If the...