Goddard's Estate, In re

• Decision Date: 14 October 1958
• Citation: 330 P.2d 399,164 Cal.App.2d 152
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE of Estelle Christine GODDARD, etc., Deceased. Catherine SHAFOR, etc., and Anna Goddard, Contestants and Appellants, v. Martha L. HILANDS, etc., Petitioner and Respondent, Fred Judson, Alta Davidson, Bruno Demke, Frank Flicker, Trinity Baptist Church of Santa Monica, Braille Institute of America, and Shriners Hospital for Crippled Children, a corporation, Legatees and Respondents. Civ. 22983.

Page 399

330 P.2d 399

164 Cal.App.2d 152

ESTATE of Estelle Christine GODDARD, etc., Deceased Catherine SHAFOR, etc., and Anna Goddard, Contestants and Appellants, v. Martha L. HILANDS, etc., Petitioner and Respondent Fred Judson, Alta Davidson, Bruno Demke, Frank Flicker, Trinity Baptist Church of Santa Monica, Braille Institute of America, and Shriners Hospital for Crippled Children, a corporation, Legatees and Respondents.

Civ. 22983.

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

Oct. 14, 1958.

Gladys Towles Root and Eugene V. McPherson, Los Angeles, for appellants.

Harold E. Allport, Jr., Hollywood, Scudder & Forde, Pacific Palisades, Tanner, Odell & Taft, A. G. Ritter, Los Angeles, for respondents.

RATROSSO, Justice pro tem.

This is an appeal from a summary judgment dismissing a petition for the revocation of the probate of the will of the above named decedent.

The testatrix Estelle Christine Goddard died on September 29, 1956, at the age of 60 years, leaving surviving as her sole heirs, Catherine Shafor, a cousin, and Anna Goddard, the mother of the testatrix's predeceased husband. ¹ An holographic will executed by the testatrix on March 22, 1948, was duly admitted to probate on October 29, 1956. Thereafter a petition to revoke probate thereof was filed by said Catherine Shafor and Anna Goddard who will hereinafter be referred to as contestants or appellants. The petition for revocation alleged five grounds of contest: (1) lack of testamentary capacity; (2) want of due execution; (3) undue influence alleged to have been exercised by Martha L. Hilands, the executrix and residuary legatee under the will; (4) fraud upon the part of said Martha L. Hilands and (5) that the will had been revoked by the testatrix prior to her death.

Answers to the contest were filed by the executrix and the other legatees under the will wherein they denied each and all of the allegations thereof.

Following the filing of the answers the respondents served and filed a notice of motion for summary judgment pursuant to the provisions of section 437c of the Code of Civil Procedure supported by two affidavits, one by the executrix and the other by H. E. Allport, her attorney, who had also been the attorney for the testatrix during her lifetime. In opposition to this motion, the appellants filed an affidavit of Grace Lighty, the sister of the testatrix's predeceased husband. At the hearing of the motion for summary judgment it was stipulated that the deposition of Dr. Francis M. Smith, Alta Davidson and H. E. Allport, Sr., might be considered as affidavits on behalf of the moving parties and that the deposition of the appellant Anna Goddard might be considered as a counteraffidavit on behalf of the appellants.

By the affidavits and depositions upon behalf of the respondents it was made to appear (1) that at the time of the execution of the will the testatrix was of sound mind and possessed testamentary capacity; (2) that the will was entirely written, dated and signed in the handwriting of the testatrix and was found among her effects after her death, in an envelope addressed to her attorney; (3) that the respondent Martha L. Hilands never discussed with the testatrix the making of the will; that she never suggested to the testatrix that she make a will nor did she induce or persuade her to do so; that she never knew that the testatrix had executed a will until after it was executed and did not learn of the contents thereof until after the testatrix's death; (4) that the respondent Martha L. Hilands never made any representations to the testatrix with respect to the execution of the will and never conversed with the testatrix or advised her with respect to the disposition of her estate nor did she make any suggestions or representations with respect to the manner of the disposition thereof; and (5) that an examination of the testatrix's papers and personal effects failed to disclose the existence of any will other than the one admitted to probate except a prior will dated March 10, 1942, and likewise failed to disclose any writing, codicil or other instrument revoking or purporting to revoke the will so admitted to probate.

Directing our attention to the showing made by appellants in opposition to the motion for summary judgment by the affidavit of Grace Lighty and the deposition of Anna Goddard, we fail to find therein a single word of testimony to the effect that the will was not entirely written, dated and signed in the handwriting of the testatrix or that there was in existence any later will or other document revoking the same or that the respondent Martha L. Hilands made any false representations to the testatrix in order to induce her to execute a will in her favor. Indeed, in the briefs in this court, appellants made no pretense that there was any showing of any such facts. Appellants' only claim is that the affidavit of Grace Lighty and the deposition of Anna Goddard contain statements of fact which if admitted to be true, as they must on the hearing of a motion for summary judgment, are sufficient to establish the existence of a triable issue as to testamentary capacity and undue influence.

In support of this contention they refer to the following statements in the affidavit of Grace Lighty: Subsequent to the death of her husband the testatrix would call Mrs. Lighty on the telephone and 'cry bitterly' and when said affiant visited the testatrix the latter 'appeared to be totally incapable of doing anything for herself;' that the respondent Martha L. Hilands 'was constantly in touch with the' testatrix, 'handling her business affairs, and in fact on one occasion your affiant received a call from Martha Hilands wherein Martha Hilands informed your affiant that she, Martha Hilands, was preparing the income tax returns for the deceased Estelle Christine Goddard because Estelle Christine Goddard could not do that herself; that around March of 1948, at the time your affiant had this conversation with Martha Hilands, your affiant called the deceased Estelle Christine Goddard back on the telephone and the telephone was answered by Martha Hilands. At that time Martha Hilands informed your affiant that your affiant could not speak to Mrs. Goddard because she, Martha Hilands, was handling Estelle Christine Goddard's affairs. That your affiant well and truly believes and is of the opinion that during the year 1948 Estelle Christine Goddard could not and did not handle any of her affairs, nor was she able at that time to make a Will uninfluenced by others.'

With respect to the deposition of the appellant Anna Goddard, the testimony therein upon which appellants rely is to the effect that the testatrix was 'Very, very nervous. She had to have everything done by someone. She couldn't do a thing alone. So, I think she was persuaded. * * * [S]he couldn't do anything for herself. * * * When she made out that will, yes, there was something wrong, absolutely. * * * I think she was very nervous and she cried most of the time, especially after my son [testatrix's husband] died, and I don't think she was really of a sound mind sometimes because I seen her, I would talk to her over the phone, and she would cry and cry. So, I know that she really wasn't herself. She couldn't have been because it is so unjust to leave that to that one girl [Martha Hilands]. Very unjust.'

We fail to find to the foregoing any fact or facts which if testified to upon the trial would tend to establish that the testatrix did not possess testamentary capacity when executing her will or that the same was executed as the result of undue influence exerted upon her by the respondent Martha Hilands or any other person.

It is to be remembered that this is a contest after probate and that the admission of the will to probate "established prima facie for all the purposes of the contest, that it was duly executed in the manner required by law by a testator who was competent, free from undue influence, etc. The burden of proof was on the contestants to establish its invalidity.' In re Estate of Baird, 176 Cal. 381, 384, 168 P. 561. It is only when the contestant has established a prima facie case of the absence of testamentary capacity that the proponent of the will has the burden of meeting it. Testamentary capacity is always presumed to exist until the contrary is established, and the ultimate question is what was actually the testator's mental state at the time of the testamentary act, and not what it...