Goulart's Estate, In re

• Decision Date: 04 December 1963
• Citation: 222 Cal.App.2d 808,35 Cal.Rptr. 465
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Louise Amelia GOULART, also known as Louisa Amelia Goulart and Louisa A. Goulart, Deceased. Rosa A. XAVIER et al., Plaintiffs and Appellants, v. Louis S. AMARAL et al., Defendants and Respondents. Civ. 20820.

Page 465

35 Cal.Rptr. 465

222 Cal.App.2d 808

In the Matter of the ESTATE of Louise Amelia GOULART, also known as Louisa Amelia Goulart and Louisa A. Goulart, Deceased.

Rosa A. XAVIER et al., Plaintiffs and Appellants, v. Louis S. AMARAL et al., Defendants and Respondents.

Civ. 20820.

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

Dec. 4, 1963.

Rehearing Denied Dec. 30, 1963.

Hearing Denied Jan. 29, 1964.

LeRoy A. Broun, Robert L. Lancefield, by LeRoy A. Broun, Fremont, for appellants.

Sabraw & Avera, Fremont, for respondents.

DEVINE, Justice.

There are two appeals: one, from a judgment for proponents in a will contest tried to a jury; and the other, from a judgment determining interests in the estate under the will.

Decedent, Louise Goulart, was born in the Azores in 1878. In the early part of the present century, she came to California to make her home with Jose P. and Louise Amaral. This couple, being childless, wished to adopt her, but could not do so under the law at that time because she was an adult. She lived with the two until the death of the aunt in 1935. In 1952, the law having been changed to allow the adoption of an adult, Jose P. Amaral adopted Louise Goulart. She was then 74 years old. She did not, however, change her name. He declared that she had been as a daughter to him and that he could repay her for services to him only by giving her security and leaving her his estate. She kept house for him. He died in 1953 and devised his estate to her.

The challenged will of Louise Goulart is dated September 18, 1957. She died on January 24, 1960. She had never married. The will leaves her whole estate (except small bequests for Masses), which she had received from her adoptive parent, of value about $250,000, to a natural brother and two sisters in the Azores, each to receive one third. All three were living when the will was executed, but the brother and one sister died before testatrix died. There are no alternative devises, and there is no residuary clause in the will.

I. THE WILL CONTEST

The sole issue is mental competency of testatrix on September 18, 1957.

The will was prepared by Harold Hove, an attorney who had met the testatrix on one occasion, when he represented taxpayers in a suit in which Louis Amaral was interested, before the first conversation relating to the will. He was selected by Louis Amaral, at the request of decedent. Louis Amaral was not related to the adoptive parent but was a family friend and had taken care of, or assisted in the care of, many affairs of the testatrix since the death of her adoptive father. She could understand many English words, but it appears from the entire testimony of the case that she was quite limited in her use of this language and that most of her conversation was in her native Portuguese. She could not read or write, and her correspondence, some of which was with her relatives in the Azores, was carried on through the services of Manuel G. Serpa, whose testimony is summarized below.

Louise Goulart had told Louis Amaral that she did not wish the services of the attorney who had handled the adoption, in the drafting of her will. She did not tell Mr. Hove about the adoption. She told him that her brother and sisters in the Azores were her only relatives. There is testimony by neighbors that she never spoke of having acquired new relatives by the adoption. Mr. Hove testified that testatrix told him she wanted to leave all of her estate in equal parts to her two sisters and her brother in the Azores. Mr. Hove felt that testatrix could understand what he was saying in English, because she would sometimes reply in English, but he asked Mr. Amaral to translate each paragraph of the draft to her; and Mr. Amaral testified that he did this in simple Portuguese words. Mr. Hove and Mr. Amaral, who was a subscribing witness, testified that in their opinion she was mentally sound on September 18, 1957. The signature is by mark.

Mr. Hove did not ask the testatrix about her property, except to inquire if there were any personal articles which she wished to leave specifically, and she said no. Following the execution of her will, however, testatrix walked to the front door with Mr. Hove and said, 'There is some of my property across the street,' which was the fact. The principal testimony for appellants is that of the testatrix' personal physician, Dr. Guy Romito. He testified that he had been her physician since 1954 and that although she had periodic episodes of extreme nervousness, she seemed perfectly stable mentally up to May 9, 1957. On that date she was extremely nervous and thought there was a religious cult near her home, which was annoying her. On May 31, 1957, she was somewhat improved, and on June 28 her condition was about the same. The doctor saw his patient on one occasion, which he said was probably between August and October 1957, when she imagined there were people in her backyard and stomping on her roof at night, and she was hearing voices around her. As to the episode of imagining people on the roof, however, there is some uncertainty as to date because the witness who summoned the doctor on that occasion testified that it was shortly before Miss Goulart's entry to Livermore Sanitarium, which was in March 1958. The doctor testified that Miss Goulart had a phobia of cancer, and that he was unable to reassure her successfully, but he said that he had operated on her a few months earlier for a benign tumor, and that many people do not respond to reassurances but she required more than usual. He said that his diagnosis was cerebral arteriosclerosis, the result of which is senile dementia, that this was a progressive condition, and that it was progressive during the period from May to September 1957. He testified, however, that a partient with senile dementia may have lucid intervals which may occur over a period of an hour or two, and possibly, though improbably, for longer than that. The doctor gave his opinion that from May 1957 until her death, his patient was not aware of any matters pertaining to her estate and was not capable of knowing what she would have said in any will.

In March 1958, Dr. Romito suggested that his patient go to Livermore Sanitarium because she was having hallucinations. She did go, and remained about seven weeks. Dr. Maud Lee Etheredge, a psychiatrist at the sanitarium, testified that she had diagnosed the patient's condition as that of schizophrenia, paranoid type. Miss Goulart described her persecutors as a religious group which would run around her house and scream, and enter her room. The doctor thought the patient's living alone had aggravated the condition, and testified that she recovered quickly in the sanitarium. She said she found no evidence of senile dementia and that although older people all have a certain amount of arteriosclerosis, she found no outstanding amount in this case. The patient was well oriented, and the doctor thought she had the capacity to understand her relationship to her relatives. In a case of senile dementia, the doctor testified, the memory is very poor and she did not find this to be the case with Miss Goulart.

Frank Madruga, retired Fire Chief of the City of Fremont, testified that in the middle of 1957 there was a proposition made to Miss Goulart for the sale by her of certain property for $115,000, but she objected because she thought the property was worth more. Maria Vargas, testatrix' grandniece, who came to this country from the Azores in 1959 and visited testatrix on one occasion about the middle of that year, testified that the testatrix spoke about the family in the Azores and told how she had left her property by the will. At the time of the visit, Miss Goulart knew that one of her sisters, Miss Vargas' grandmother, was dead. She had died May 4, 1958.

A summary of the testimony of other witnesses produced by respondents appears below under discussion of the subject of 'Opinions of Law Witnesses Relating to Competency.'

Contestants called in rebuttal Mr. Craig, manager of a rest home in which testatrix lived from September 27, 1958, until three days before her death. He testified that she was confused, frightened, withdrawn from the society of others in the home, and troubled by noises continually. He knew nothing of her condition before her admittance to the home, which was almost exactly a year after the execution of the will.

Contestants are heirs at law of Jose P. Amaral, and of Louise Goulart by virtue of the adoption. Contestants made no attempt to show any intimacy whatever between testatrix and themselves. One of them, indeed, had been an unsuccessful contestant of the will by which Jose P. Amaral left his property to his adopted daughter.

A. Instructions Relating to Mental Capacity

Appellants contend that they were entitled to their proffered instruction that if the jury should find that at any time prior to the execution of the instrument, the purported testatrix lacked testamentary competency which was caused by a mental disorder of a general and continuous nature, a presumption arose that said incompetency continues to exist. The court refused this instruction, but did instruct that when such mental disorder of a general and continuous nature is shown, an inference may arise that incompetency continues to exist and that it is for the jury to determine whether or not the inference is reasonable. Appellants cite the statement in Estate of Fosselman, 48 Cal.2d 179, 186, 308 P.2d 336, 340, that where mental disorder of general and continuous nature exists the inference is reasonable, and 'perhaps there is even a legal presumption,' that the incompetency continues to exist. It will be seen at once that the Supreme Court did not decide that there is, but only suggested that there may be, such a presumption. The Fosselman case was one in which the finding of income petency by the trial judge was affirmed. The decedent was...