Fritschi's Estate, In re

• Decision Date: 27 August 1963
• Citation: 33 Cal.Rptr. 264,60 Cal.2d 367,384 P.2d 656
• Court: California Supreme Court
• Parties: , 384 P.2d 656 In re ESTATE of Ulrich A. FRITSCHI, Deceased. James Philip FRITSCHI et al., Minors, etc., Plaintiffs and Respondents, v. Marie Sylvera ,TEED, Defendant and Appellant.

Page 264

33 Cal.Rptr. 264

60 Cal.2d 367, 384 P.2d 656

In re ESTATE of Ulrich A. FRITSCHI, Deceased.

James Philip FRITSCHI et al., Minors, etc., Plaintiffs and Respondents, v. Marie Sylvera ,TEED, Defendant and Appellant.

Sac. 7293.

Supreme Court of California, In Bank.

Aug. 27, 1963.

McAllister & Johnson and Neil R. McAllister, Jr., Sacramento, for defendant and appellant.

Morton L. Friedman, Sacramento, for plaintiffs and respondents.

TOBRINER, Justice.

This case turns solely upon the issue of whether substantial evidence supports the findings of the jury that the involved will was invalid because the testator lacked testamentary capacity to execute it and because one Marie Teed exerted undue influence upon him. For the reasons that follow we have concluded that, without doubt, the record does not sustain a finding of lack of testamentary capacity. Although the question of the adequacy of the showing as to undue influence is more difficult, our examination of the record compels the conclusion that the record does not sustain the finding.

Dr. Ulrich A. Fritschi, the decedent, a successful ophthalmologist practicing in Sacramento, married Rose Marie Fritschi in 1934. Two sons were born of this marriage; at the date of Dr. Fritshi's death they were aged 12 and 14 years. In 1953 Marie Teed undertook employment as Dr. Fritschi's receptionist; in the latter part of 1955 she and the doctor engaged in intimate relations. Mrs. Teed subsequently divorced her husband; Mrs. Fritshci in April of 1958 secured an interlocutory decree of divorce. The doctor and his wife entered into a full property settlement, together with provisions for alimony and child support; Dr. Fritschi planned to marry marie Teed after the divorce decree became final; he named her as the residuary legatee in his will.

On February 1, 1959, Dr. Fritschi entered the hospital with an ailment that was ultimately diagnosed as cancer of the stomach with massive involvement of the liver. This illness caused his death the following April 5th. During the course of his confinement at the hospital the doctor's physical condition rapidly deteriorated. Some testimony indicates that because of the illness and the induction of drugs Dr. Fritschi sustained emotional changes. During this period of hospitalization Marie Teed spent a great deal of time with the doctor, and, having become his bookkeeper, to a degree took over his business affairs.

The doctor executed the contested will on March 31, 1959. In this will he changed the provisions of a prior will of February 12, 1959, which related to the treatment of the proceeds of a policy of life insurance in the sum of $100,000. Under the terms of both wills the proceeds were to go to the doctor's two children. The later will provided, however, that, in place of direct distribution of the funds to the children, trusts be established for them. Further, the will provided for satisfaction of all estate taxes solely from the policy proceeds, rather than by means of a proration provision under the earlier will. Although the final tax burden remained unclear at the time of trial, Marie Teed, the residuary legatee, would have benefited in excess of $10,000 if the residue were to have been held free of its pro rata share of estate taxes.

Mrs. Fritschi contested this will on behalf of the two children, claiming that the doctor lacked testamentary capacity at the time of execution and that the will constituted a product of the undue influence of Marie Teed. The jury rendered a special verdict in favor of plaintiffs on both these issues. Accordingly, the court entered judgment denying probate to the March 31st will. Marie Teed, contending that the verdict lacked the support of substantial evidence, appealed from the judgment. In considering these contentions we shall first discuss the finding of lack of capacity and then turn to the finding of undue influence.

We see no purpose in summarizing in detail the testimony adduced by plaintiffs. Some of it simply sets out the physical weakness of a man afflicted with a fatal illness. Other testimony describes minor irrational displays of Dr. Fritschi and certain personality quirks. In particular, plaintiffs stress the testimony of Dr. Schroeder, one of the decedent's attending physicians. Dr. Fritschi first consulted Dr. Schroeder for treatment in September of 1958. At that time the decedent, deeply worried about one of his children, exhibited a fixed conviction that this child should be removed from his existing environmental situation and transferred to another area under a close disciplinary type of schooling. Dr. Schroeder stated that a 'disturbed' attitude toward his children continued through Dr. Fritschi's hospitalization; indeed, Dr. Schroeder stated that he was concerned that Dr. Fritschi did not spontaneously evidence a desire to see his children. Dr. Schroeder concluded that 'at least in this small phase of his dealings with his children I think it was very difficult for him to see right and wrong, good and bad, and all that sort of thing.' Such testimony, however, does not reach the requisite showing of an insane delusion operating directly on the testamentary act. (In re Estate of Perkins (1925), 195 Cal. 699, 235 P. 45.)

The real impact of plaintiffs' arguments rests upon the assertion of Dr. Fritschi's drug-induced incompetence. Plaintiffs attempted to show that this lack of capacity resulted either from large sustained doses of drugs or administration of drugs on the morning of the execution of the will. Plaintiffs offered no testimony to prove that the drugs would or could cause lasting incompetence as opposed to a temporary reaction. When counsel for plaintiffs asked Dr. Schroeder as to the effect of dosage of certain tranquilizers over a period of time the doctor indicated only that 'they do relieve you of some of the taxing effects of responsibilities,' and concluded, 'I don't know much about these drugs, but they certainly can make a difference in the emotional response to people, of people to their situations.' Revealingly, plaintiffs asked none of the doctors whom they called as witnesses for an opinion of Dr. Fritschi's competency.

Plaintiffs sought to indicate through the testimony of Dr. Young the effect of drugs administered the morning of the 31st. Plaintiffs presented the decedent's hospital record to Dr. Young and interrogated him as to the possible effect of the drugs given in a period of a few hours prior to the signing of the will. Dr. Young testified that the dosage of one particular drug, butisol, 'would tend to make the individual more sleepy or groggy than the usual sedative dose. It would tend to go over in the local hypnotic range of medication.' The effect of this drug on a person's mental abilities 'would depend on the individual, but it would be more dosage given, the more it would tend to cloud his thinking and make him groggy. Somewhat like being drunk or toward that tendency.' The combined effect of this drug and two other drugs likewise administered would affect a person's judgment in that they would 'tend to decrease their ability to think clearly.' (Emphasis added.)

On the other hand, Dr. Young, during cross-examination, indicated that tolerance is a factor in dosage and that the dosage would increase as the recipient's tolerance increased. Dr. Schroeder testified that the drugs did not always work the desired effects with decedent; that 'some worked some days and some wouldn't.'

Both witnesses to the will expressed the opinion that Dr. Fritschi was of a sound and disposing mind at the time he signed it. One witness testified that the doctor sat on the edge of his bed and joked about the 'grand opening' the next day, referring to an exploratory operation. The decedent's attorney described how he read the entire will aloud while decedent followed on a separate copy and expressed assent after each paragraph. A friend and business associate of the doctor's who visited him immediately after the signing of the will and talked with him for 20 to 25 minutes testified that Dr. Fritschi 'talked sense.'

The testimony fails to establish that the decedent lacked sufficient mental capacity to be able to understand the nature of his acts. We have stated that the determinants of testamentary capacity are whether the individual 'has sufficient mental capacity to be able to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property, and to remember and understand his relations to the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument.' (In re Estate of Smith (1926), 200 Cal. 152, 158, 252 P. 325, 328.) The relevant time in determining such capacity is the time of execution of the will. (In re Estate of Lingenfelter (1952), 38 Cal.2d 571, 580, 241 P.2d 990.) The testator is presumed sane and competent and the burden rests on the contestant to overcome this presumption. (In re Estate of Lingenfelter, supra.) Plaintiffs' evidence relating to the decedent's condition at the time of execution of the will amounted at most to speculation as to possible effects of drugs. Such evidence, particularly in the light of the uncontradicted testimony of those present at the execution of the will, does not attain sufficient force to overcome the presumption of sanity.

Turning to the second basic issue of the case, the finding of the jury that Marie Teed unduly influenced the testator in the making of his will, we note at the outset that the right to testamentary disposition of one's property is a fundamental one which reaches back to the early common law; 'the right to dispose of one's property by will is most solemnly assured by law, and * * * does not depend upon its judicious use.' (In re McDevitt's Estate (1892), 95 Cal. 17, 33, 30 P. 101, 106.) The right has, of course, been restricted by legislative and social controls (In...