Goldman v. Goldman

• Decision Date: 19 February 1953
• Citation: 116 Cal.App.2d 227,253 P.2d 474
• Court: California Court of Appeals Court of Appeals
• Parties: GOLDMAN v. GOLDMAN et al. Civ. 19141.

Page 474

253 P.2d 474

116 Cal.App.2d 227

GOLDMAN v. GOLDMAN et al.

Civ. 19141.

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

Feb. 19, 1953.

Leader & Leader, Los Angeles, for appellants, Robert P. Dockeray, Los Angeles, of counsel.

Harold Shire, Beverly Hills, and Sam Bubrick, Los Angeles, for respondent.

MOORE, Presiding Justice.

From a judgment quieting title in Dorothy Goldman and decreeing that she is entitled to possession of lot 23, tract 450, in Los Angeles county, appellants Louis and Shirley Goldman have transferred the matter by appeal to this court.

It appears that after Benjamin Goldman had reached his sixtieth year and was the father of Louis and three daughters, he married Dorothy in 1944 in Nevada. On November 9, 1945, they purchased lot 23 and took the title as joint tenants, respondent paying $6,000 of her separate funds on the purchase price of $20,000. Respondent and her husband resided in the structure thus acquired which contained four rental units besides that which they occupied. Respondent continued to live on the property from the time of its purchase until the decease of Benjamin, April 15, 1950. She made no transfer of her interest during Benjamin's lifetime. But about January 24, 1950, the latter executed a grant deed conveying his entire interest in fee to appellants. Six days after the execution of such deed Benjamin was hospitalized at the Cedars of Lebanon Hospital where he remained until February 8. On the latter date he was moved to the Madison Rest where he lingered with an incurable cancer.

The circumstances of the conveyance by Benjamin were as follows: while he was still at his home he requested Louis to have a deed prepared for the transfer of title to lot 23 to appellants. Pursuant to such instruction, the son caused the Security-First National Bank to prepare a deed for the purpose of enabling the father to effect such conveyance. The deed in proper form was delivered to Benjamin who acknowledged his execution thereof before Mr. Russell Peyton, a notary public. The latter delivered it to Louis at his store.

During the period of hospitalization, Mr. Goldman had no knowledge of the fact that he had cancer. He believed he was going to return to his home and referred to the property described in the deed as his own and continued to pay all bills necessary for its maintenance.

It might not be amiss to interject at this point that on February 14 Banjamin assigned the pink registration certificate of his motor car to Louis. In a separate suit Louis undertook to recover possession of such vehicle. Cal.App., 253 P.2d 483. Civil No. 19142. Both actions were consolidated for trial. A separate judgment denied Louis possession of the car. Prior to his father's decease, Louis gave no notice to respondent or to the tenants on the property of the transfers which had been made to him by his father. About a month prior to the father's decease, he gave Louis his half interest in their store which they had operated in partnership. However, that property is not involved in the litigation.

Respondent contends (1) that grantor was mentally incompetent at the time of the execution and delivery of the deed and the assignment; (2) that such conveyances were effected by the fraud and undue influence of Louis.

Appellants demand a reversal of the judgment on the ground that the evidence does not support the findings.

Insufficient Evidence of Incompetency.

The court found that Benjamin Goldman was an incompetent person on the day of the execution of the conveyance to Louis and that such incompetency was known to appellants. The evidence of decedent's mental condition does not sustain those findings. The testimony of respondent was that grantor was in such agony that while he spoke normally at times, all of a sudden something would happen to him. His mind would wander. He would sit and his eyes would stare, his mouth open. However, such behavior was observed in 1950 after he had gone to the Madison Lodge. It did not occur in 1949 or prior to the conveyances. Withal, respondent admitted that while her husband was in the hospital and at the lodge, he was able to transact various matters and sign checks for bills and converse intelligibly. She testified that she did not know the meaning of the word incompetent.

Dr. Peterfy was decedent's physician. He visited his patient on the very day of the execution of the deed and had seen him four times in January prior to the 24th. On the latter date, Benjamin was normally competent and was not under the influence of opiates or narcotics. He knew what he was saying and what he was doing.

Dr. Leonard Goldman, a nephew of decedent, visited him in November and December 1949 and in the following January. He testified that Mr. Goldman was fully competent in December and also had the ability to think clearly when he visited him at the hospital on January 30. It was his opinion that his uncle was fully competent at that time. Whenever he saw Mr. Goldman the latter was mentally sound and in full control of his faculties at all times. Decedent's sister, Mrs. Brown, visited him twice at the hospital. On the first occasion she was with him thirty minutes. He did not seem listless or stupefied. It was her opinion that there was nothing wrong with him mentally. On the second occasion a number of members of his family were present. He recognized and conversed with all of them. She testified that his eyes were natural, he did not appear to be short of breath; 'he was just as natural as could be'; he was clean shaven, felt good, showed no signs of mental confusion, knew what he was talking about and discussed matters in a co-ordinated manner. She did not observe that in the midst of a discussion he would change his conversation to an entirely different subject. It was her opinion that his mind was clear and competent. When she visited him in February at the Lodge, he stated to Mrs. Brown that he did not wish to go home because he would have better care at the Lodge. On February 18th she considered his eyes and respiration normal. He did not appear stupefied and inquired about the members of her family and was in his right mind. The notary public, an acquaintance of Benjamin for ten years, visited him at the hospital February 1st and found him perfectly normal.

Not only does such testimony establish decedent's normal understanding and control of his will, but the testimony of respondent, standing alone, is insufficient to establish mental incompetency at or near the dates on which Benjamin executed the deed and the transfer of the automobile.

Where one is able to understand his acts and the relation in which he stands to the objects of his bounty, free from any delusion, he has the capacity to dispose of his property notwithstanding he may be suffering pain and physical disability. Avery v. Avery, 42 Cal.App. 100, 103, 183 P. 453; In re Estate of Dobrzensky, 105 Cal.App.2d 134, 139, 232 P.2d 886. In Estate of Dobrzensky the decedent was a tiny old lady weighing less than 90 pounds, a sufferer from arthritis for twenty years prior to her death and stooped from curvature of the spine. Her hands were swollen, her health was poor. She had not recovered from the shock of her husband's death. In the eleven months following she was confined in hospitals and rest homes much of the time and when at home physicians visited her two to three times a week. Her heart condition caused her pain, made her weak, short of breath and nervous. She slept only with the aid of drugs and then fitfully. On the day she executed her will she stated that she had not slept at night for weeks. She was emotionally upset by the grief over the loss of her husband. Her memory was impaired. She was forgetful and kept repeating, over and over. She would forget that her visitors had called on her. She believed that certain household articles had disappeared, even after they were shown to her. Notwithstanding the illness, the weak mind, the physical debility of the old lady, the court determined that she had possessed testamentary capacity.

In the absence of an opinion of a qualified physician or of an intimate acquaintance, it would indeed be singular to declare that Mr. Goldman was incapacitated to make a gift of his share in a property to his son rather than leave it to respondent. See In re Estate of Selb, 84 Cal.App.2d 46, 49, 190 P.2d 277. Even though a donor suffers physical and mental debility, he is not thereby necessarily rendered incompetent to make a gift of his property so long as he has sufficient mental power to grasp and comprehend the nature of his act, the character of his property and his relation to the natural objects of his bounty. In re Estate of Arnold, 16 Cal.2d 573, 589, 107 P.2d 25; Estate of Perkins, 195 Cal. 699, 703, 235 P. 45; see In re Estate of Dobrzensky, supra. That decedent had such power is shown by his repeated statements that he intended to give his possessions to Louis and that he had done so as well as by the want of proof of his incapacity to carry on his business transactions.

No Evidence of Fraud or Undue Influence.

The court found that at about the time of the execution of the grant deed Mr. Goldman was an inmate of the Cedars of Lebanon Hospital, suffering from extreme pain; was under the influence of opiates and such facts were known to appellants; that appellants procured him to execute the grant deed by fraud, force and coercion by taking advantage of their close and intimate relations with him, and also that they were motivated by a desire to defraud and cheat respondent.

No evidence is found to support such findings. There is not the slightest proof that at the time of the execution of the deed he was under the influence of opiates or that he executed the deed in favor of appellants by reason of any fraudulent representation. In order to substantiate such findings as those made by the court, it was obligatory upon ...