Glass' Estate, In re

• Decision Date: 20 November 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Matter of the ESTATE of Louis R. GLASS, Deceased. Robert M. SEGALL, Maxine Cass Levine, and Richard Glass, Petitioners and Respondents, v. Esther Glass ZIPKIN, Appellant. Civ. 23206.

Page 1045

331 P.2d 1045

165 Cal.App.2d 380

Matter of the ESTATE of Louis R. GLASS, Deceased.

Robert M. SEGALL, Maxine Cass Levine, and Richard Glass, Petitioners and Respondents, v. Esther Glass ZIPKIN, Appellant.

Civ. 23206.

District Court of Appeal, Second District, Division 2, California.

Nov. 20, 1958.

Wolver & Wolver, Eugene L. Wolver, Los Angeles, for appellant.

Eric Julber and William S. Bartman, Los Angeles, for respondents.

HERNDON, Justice.

Contestant appeals from an order admitting to probate an instrument which the trial court found to be a valid holographic will. The appeal is presented upon a settled statement. Contestant is the sole surviving sister and proponents are a niece and two nephews of the decedent. The grounds of contest were: (1) lack of testamentary capacity; (2) lack of testamentary intent; (3) fraud; and (4) undue influence. The latter two grounds were abandoned at the trial.

It has been stipulated that the instrument in question is entirely in the handwriting of the decedent. As admitted to probate, it reads as follows:

'1956 May 10

'This is Louis R. Glass

'I wish to Retract my last Will witch I left my sister Ester Glass now Mress Zipkin & give my belonges to my Three Nefeu & Nice. Name is Bob Segal & Richard Glass. Mrs. Goldstien wich now lives in Santa Monica, Calif all three live here at Present I have $30,000 that wood leve them about 10,000 each & my cash in bankes in town in Los Angeles, Calif.'

On this appeal contestant argues three contentions: (1) that the trial court's finding of testamentary capacity is unsupported by the evidence; (2) that the purported holographic will bears no signature and (3) that 'no testamentary intent was proven in regard to the same.'

Decedent, who died on June 11, 1957, at the age of about 62 years, was a tailor by trade and a veteran of World War I. Records of the Veterans Administration received in evidence disclose that in 1931 he applied for and received a pension on the ground that 'nervous trouble' prevented his further pursuit of his occupation. The original diagnosis of the examining doctor made in 1931 was 'Constitutional Psychopathic Inferior. Psychoneuosis [sic] mixed. Psychasthema and Hysteria.' Later in the same year another doctor made a diagnosis of functional neurosis and mild psychosis. In 1933 a Veterans Administration examiner diagnosed decedent's condition as 'psychoneurosis mixed type.' In 1939 and 1942 decedent was examined with resultant diagnoses of 'dementia praecox, catatonic type.' The record discloses no further medical examinations during the 15-year period from 1942 until decedent's death in 1957.

In 1939 the Veterans Administration awarded decedent the maximum pension of $187 per month, which he continued to receive until his death. The decedent was never adjudicated an incompetent, nor was he ever hospitalized for any nervous condition. An attorney for the Veterans Administration testified that the pension payments were paid directly to decedent since he was always considered able to handle his own money.

Several relatives and intimate friends of the decedent testified to the effect that for many years after he began receiving his pension he spent much of his time at Pershing Square, at the local race tracks and at the stock exchange, where he gambled and invested, respectively, with a considerable degree of success. He lived frugally, spent very little money on himself and at one point invested in and operated a manufacturing business, making a substantial profit. At the time of his death, his estate consisted of some $30,000 in cash, which apparently represented accumulations from his pension, his gambling activities and his investments.

It is recited in the settled statement that 'There was testimony that [decedent] remained vigorous and continued to do exercises until the time of his death, and there was no evidence of any deterioration of his physical or mental faculties during the last three or four years prior to his death. The death certificate of the deceased showed a Coroner's diagnosis of arteriosclerosis.' There was testimony that decedent was quite active up until the time of his death and that he visited frequently with the niece and nephews named in the instrument in question. There was testimony also that it was the habit of decedent to refer to Maxine Levine as 'Mrs. Goldstein.' According to the testimony of Robert Segall, decedent had informed Segall before his death that his property consisted of approximately $30,000 in cash deposited in several banks which he identified, and he declared to Segall his intention to leave his money to his niece and nephews. After decedent's death, Segall found the questioned instrument in the top drawer of decedent's dresser folded with a prior witnessed will (referred to in the briefs as the will of July, 1955) in which contestant was named a one-third beneficiary and as executrix.

Testamentary Capacity

From the foregoing recital, it is manifest that the evidence is amply sufficient to sustain the trial court's finding of testamentary capacity. It is familiar law that a testator is competent to make a will if he has sufficient mental capacity to understand the nature of the testamentary act, to understand and recollect the nature and situation of his property and to remember and understand his relations to the persons who are the natural objects of his bounty. In re Estate of Gilbert, 148 Cal.App.2d 761, 767, 307 P.2d 395; In re Estate of Sexton, 199 Cal. 759, 764, 251 P. 778; In re Estate of Smith, 200 Cal. 152, 158, 252 P. 325; In re Estate of Arnold, 16 Cal.2d 573, 586, 107 P.2d 25. There is a presumption of sanity and to overcome this presumption '* * * the contestant must show affirmatively and by a preponderance of the evidence that the testator was of unsound mind at the time he executed his will.' In re Estate of Lingenfelter, 38 Cal.2d 571, 580, 241 P.2d 990, 996; In re Estate of Smith, supra, 200 Cal. 152,...