Goetz' Estate, In re

• Decision Date: 01 August 1967
• Citation: 61 Cal.Rptr. 181,253 Cal.App.2d 107
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Mabel GOETZ, Deceased. William GOETZ, Plaintiff and Appellant, v. Earl William ROBERTS, Defendant and Respondent. Civ. 23645.

Page 181

61 Cal.Rptr. 181

253 Cal.App.2d 107

In the Matter of the ESTATE of Mabel GOETZ, Deceased.

William GOETZ, Plaintiff and Appellant, v. Earl William ROBERTS, Defendant and Respondent.

Civ. 23645.

Court of Appeal, First District, Division 4, California.

Aug. 1, 1967.

As Amended on Denial of Rehearing Aug. 11, 1967.

As Amended Sept. 11, 1967.

Hearing Denied Sept. 27, 1967.

Todd & Todd, San Francisco, J. Elwood Andresen, Boulder Creek, for appellant.

Murphy & Murphy, Frank Murphy, Jr., Santa Cruz, for respondent.

DEVINE, Presiding Justice.

Appellant contested his wife's will, which named her son by a former marriage executor and sole beneficiary, on the grounds of lack of testamentary capacity and undue influence. The jury found in favor of the proponent of the will on the first ground; the trial judge granted a nonsuit on the issue of undue influence. So far as the judgment is based on the verdict, appellant contends that the evidence does not support the verdict and that the judge committed prejudicial misconduct. As to the nonsuit, he contends that substantial evidence had been presented in support of the contest.

The Parties and the Properties

Mabel Goetz died on November 25, 1964, at the age of 82. During her lifetime she had executed but one will, that dated November 20, 1963. The will leaves her entire estate to respondent Earl William Roberts, and expressly excludes her husband for the reason, as expressed in the will, 'that he is financially well off,' and excludes her daughter, Winona Beth Mersereau, respondent's sister, for the reasons, also stated in the will, 'that she is financially well off, and * * * that she has not visited me for many years.' The daughter resided in Mexico.

William and Mabel Goetz were married on June 10, 1952, having lived together as husband and wife since 1928 or 1929. At the time of trial, in 1965, the husband was 78 years of age. Toward the end of her life, Mrs. Goetz expressed hostility toward and suspicion of her husband. On one or more occasions she suspected him of attempting to poison her, and she related in-incidents of his mistreating her. The husband denied any misconduct, and we may assume for purposes of the appeal that the wife's statements about her husband were, in general, unfounded and perhaps delusionary. Mrs. Goetz objected to her husband's being accompanied by a housekeeper when he visited her, his wife, at a rest home, and she remarked that the housekeeper was drinking. (Dr. Reed, witness for respondent, had observed on one occasion that the housekeeper possibly was under the influence of intoxicants.) The husband petitioned to have his wife committed as mentally ill in February 1963, but this was not carried through.

When testatrix was in a rest home she spoke of her fondness for her son, respondent, and, according to the testimony of the woman who operated the home, she 'idolized him.' At times she would live with the son and his wife at Cloverdale, California, about two hundred miles away from the Goetz home in Boulder Creek. Letters sent by testatrix show a maternal affection for her daughter. The daughter does not contest the will. She is named a respondent by contestant.

A parcel of land in San Jose was asserted by the son to be his mother's separate property and by the husband to be community property, in conservatorship proceedings. But whatever the status of this parcel, substantially all of the property of the Goetzes was acquired from his earnings as a manufacturing jeweler. Other real properties were held in joint tenancy. Stocks of a value of about $350,000 were in their joint names. ¹ Two relatively small bank accounts were in testatrix' name, and one was in her name as trustee for her husband so that she could make withdrawals if he became ill.

The Making of the Will

On September 11, 1963, Mrs. Goetz gave her son a general power of attorney. This, he testified, was to enable him to draw funds out of her bank accounts. The son testified that on October 14, 1963, they went to her safe deposit box at a bank in Santa Cruz. He had authority to sign and enter the box, apparently because she had arthritis and could not write well. Prior to this time, Mrs. Goetz had never mentioned making a will. She asked the lady at the bank who had charge of the safe deposit vault to recommend an attorney. The lady recommended attorney Dent Snider, to whose office Mrs. Goetz and her son immediately went. The son denied any participation in the conversation with the attorney. Mrs. Goetz asked her son, 'How do you want the Will made out?', and he answered that he did not care, that she should do as she wanted, and that he did not care if she left him anything.

The attorney testified that Mrs. Goetz discussed her family and the nature and extent of some of her property. She said that her husband and her daughter were both well off and were to be omitted from her will. The attorney spent considerably more time with her than he would normally for the preparation of such a simple will. She had told him of her marital difficulties, that her husband had attempted to have her committed, and that she felt he might contest the will. Because of this situation, and because of her age and poor health, he took an 'abundance of precaution' to satisfy himself that she had adequate testamentary capacity. He suggested that Dr. Reed be present when the will was signed. The son participated in the conversation, but 'only in a general way.'

Snider telephoned Mrs. Goetz when the will was ready. She asked her husband to take her to Snider's office and go over the will, but he apparently refused. The son had written to Dr. Reed, asking him to take his mother to the office when the will was ready, but Reed had not responded to the son's letter. The son, therefore, came to Boulder Creek and he and his wife took Mrs. Goetz to Snider's office on November 20, 1963. Snider read the will to her, and she read it to herself out loud. She then signed it. Snider and his secretary witnessed the execution.

Facts and Law on the Issue of Competency

Competency to make a will is presumed. (Estate of Fritschi, 60 Cal.2d 367, 372, 33 Cal.Rptr. 264, 384 P.2d 656; Estate of Wynne, 239 Cal.App.2d 369, 373, 48 Cal.Rptr. 656.) The burden is on the contestant to prove that at the very time of the execution of the will testatrix was incompetent. (Estate of Jamison, 41 Cal.2d 1, 13, 256 P.2d 984.) The jury having found that testatrix was competent, the verdict must be sustained as against the attack on the ground of insufficiency of evidence if there is any substantial evidence to support it. (Estate of Llewellyn, 83 Cal.App.2d 534, 543, 189 P.2d 822, 191 P.2d 419; Estate of Wynne, supra, 239 Cal.App.2d p. 372, 48 Cal.Rptr. 656.) There is no difficulty in sustaining the jury's action.

The points made by appellant on this issue, together with opposing evidence and comments on the law, are set forth in the series that follows:

1. Appellant produced evidence of forgetfulness, erratic, unstable and emotional behavior, and of suspicion, probably delusional at times, on the part of the testatrix. This is of no avail unless it were shown, as it was not, that it had direct influence on the testamentary act. (Estate of Lingenfelter, 38 Cal.2d 571, 581, 241 P.2d 990; Estate of Perkins, 195 Cal. 699, 703--704, 235 P. 45; Estate of Wynne, supra, 239 Cal.App.2d p. 374, 48 Cal.Rptr. 656; Estate of Nelson, 227 Cal.App.2d 42, 55, 38 Cal.Rptr. 459.) Even hallucinations, in order to destroy a will, must operate directly upon the act. (Estate of Morgan, 225 Cal.App.2d 156, 168, 37 Cal.Rptr. 160; Estate of Lingenfelter, supra, 38 Cal.2d p. 581, 241 P.2d 990; Estate of Wynne, supra, 239 Cal.App.2d p. 373, 48 Cal.Rptr. 656.) The only reference which testatrix made about omitting her husband as beneficiary when she was giving instructions to the attorney was to the husband's financial status. There was nothing delusionary about this. If the parties were joint tenants of the stocks, the husband would have a fortune probably in excess of $400,000, less taxes and expenses, which, particularly at his age, would be ample justification for the testatrix' opinion; and even if the stocks were community property, the husband, by holding one half, would be comfortably prosperous. Nothing was said by the testatrix to the attorney about misconduct, real or imaginary, on the part of the husband.

2. Appellant also relies on evidence of broad character which would establish mental incompetency generally. This consists of expert testimony of Dr. Reed, testatrix' treating physician, who had known her since early 1963; of Dr. Maeth, who had examined her at the time of the proposed commitment; of Dr. Anderson, a psychiatrist who did not see her until about three and a half months after the will was made, to the effect that Mrs. Goetz suffered chronic brain syndrome caused by senile dementia; and by various expressions their testimony denied Mrs. Goetz' testamentary capacity. The jury was instructed that proof of unsound mind emanating from a permanent and progressive mental disease such as senile dementia will be presumed to continue in the absence of evidence to the contrary. This instruction goes to the very limit of the reference in Estate of Fosselman, 48 Cal.2d 179, 186, 308 P.2d 336, to this type of evidence as an inference and 'perhaps' even a legal presumption. ²

But the jury was free to find against the medical testimony and against the presumption, if one existed, of an asserted continuing mental condition. Medical testimony is not conclusive on the issue of testamentary capacity. (Estate of Jamison, 41 Cal.2d 1, 13, 256 P.2d 984; Estate of Glass, 165 Cal.App.2d 380, 383--384, 331 P.2d 1045; Estate of Bullock, 140 Cal.App.2d 944, 948, 295 P.2d 954, 297 P.2d 633.) Nor was it without elements of weakness. Dr. Reed wrote to respondent on October 26, 1963, that at times Mrs. Goetz 'is well oriented and fairly...