Greenhill's Estate, In re

• Decision Date: 22 August 1950
• Citation: 221 P.2d 310,99 Cal.App.2d 155
• Court: California Court of Appeals Court of Appeals
• Parties: In re GREENHILL'S ESTATE. GREENHILL et al. v. GREENHILL et al. Civ. 17555.

Page 310

221 P.2d 310

99 Cal.App.2d 155

In re GREENHILL'S ESTATE.

GREENHILL et al. v. GREENHILL et al.

Civ. 17555.

District Court of Appeal, Second District, Division 1, California.

Aug. 22, 1950.

Hearing Denied Oct. 19, 1950.

E. P. Mulholland, Geo. W. Trammell, Long Beach, for appellants.

Perry & Bush, Redondo Beach, John R. A. Girling, Betty B. Gillette, Los Angeles, for respondents.

WHITE, Presiding Justice.

Arthur A. Greenhill died testate April 8, 1949, at the age of 65. His attested will, dated April 7, 1949, provided for legacies of $10.00 each to his four children by first and second marriages, Arthur, Lorna, Joan, and Kenneth (contestants and appellants herein), and to two stepchildren by his fourth and last marriage, Kenneth and Naomi (legatees and respondents herein). The remainder of his estate was bequeathed and devised to his widow, Adelle (petitioner and respondent herein), whom he had married four and one half months prior to his death, and she was named as executrix.

The widow, Adelle Greenhill, petitioned for probate of the will, whereupon decedent's four childen by previous marriages filed their grounds of opposition thereto contesting the validity of the execution and attestation of the will, the testamentary capacity of decedent, and alleging undue influence and fraudulent representations on the part of the widow. Of these, only two grounds of opposition were relied on at the trial: (1) That the will was executed under the undue influence of the widow, and (2) that it was executed at a time when the decedent lacked testamentary capacity. At the close of contestants' introduction of evidence, proponents' motion for nonsuit was granted and judgment accordingly entered granting said motion, admittin the will to probate, appointing the widow executrix, and ordering that letters testamentary be issued upon her taking the prescribed oath.

Upon this appeal contestants insist that they were entitled to have their case submitted to the jury on both of the grounds upon which the will was assailed. As to the first ground of undue influence, appellants set forth the well-established rule that where there exists a combination of three factors, namely, (1) a confidential relationship between the beneficiary and the testator, (2) undue profiting by the beneficiary under the will, and (3) actual and active participation by the beneficiary in procuring the execution of the will, a presumption of undue influence arises and the burden is on the beneficiary to show the will was not induced by his undue influence. Citing In re Estate of Graves, 202 Cal. 258, 259 P. 935; In re Estate of Lances, 216 Cal. 397, 14 P.2d 768; In re Estate of Gallo, 61 Cal.App. 163, 214 P. 496; In re Estate of Rabinowitz, 58 Cal.App.2d 106, 135 P.2d 579; Estate of Johnson, 31 Cal.App.2d 251, 87 P.2d 900; In re Estate of Teel, 25 Cal.2d 520, 154 P.2d 384.

As to both the first ground of undue influence and the second ground of lack of testamentary capacity, appellants emphasize the necessity of applying the well-settled rules governing the dispositions of motions for nonsuits, quoting from the Estate of Gallo, 61 Cal.App. 163, at page 173, 214 P. 496, at page 501: "In determining whether or not in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury the same rules apply as in civil cases. Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts proved in favor of the contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true, and if contradictory evidence has been given it must be disregarded. If there is any substantial evidence tending to prove in favor of the contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on the merits.' (Citing cases.)' In re Estate of Rabinowitz, supra, which was an appeal from a judgment of nonsuit, states: '* * * In other words, where different conclusions may be reasonably drawn by different minds from the same evidence, the decision must be left to the triers of fact. In determining the motion for a nonsuit the trial court was not authorized to, nor can this court on appeal, either weigh the evidence or pass upon the credibility of witnesses.' [58 Cal.App.2d 106, 135 P.2d 581.]

But in applying these rules another consideratio must be borne in mind, so aptly expressed by this Court in the Estate of Burns, 26 Cal.App.2d 741, 748, 80 P.2d 77, 81: 'Reviewing the question of the sufficiency of the evidence to sustain the judgment of nonsuit in the light of settled and established legal principles, we are confronted first of all with the fact that every person of sound mind over the age of eighteen years may dispose of his separate property by will. Prob.Code, sec. 20. As was said in an especially well-considered opinion prepared by Mr. Presiding Justice Nourse of Division Two of the First Appellate District in the Matter of the Estate of Nolan, , 78 P.2d 456, 457, 'the property of the testator is his to dispose of as he wills, and he is not called upon to consult or satisfy the wishes or views of juries or courts (citing cases); and 'whether in the minds of others a will is just or unjust is a matter of opinion, and to permit a jury to determine the question without that substantial evidence which the law requires would be to permit a jury to make the disposition irrespective of the desires of a testator.' In re Estate of Donovan, 114 Cal.App. 228, 233, 299 P. 816.''

Bearing in mind the limitations of the above rules, the record discloses the following facts: Decedent lived at Redondo Beach in Los Angeles County and was a retired businessman deriving his income from his rental properties. He had four adult children by two previous marriages with whom he maintained friendly relations, and he visited at the home of his eldest daughter, appellant Lorna A. Callahan, on the average of once a week. He was very proud of his grandchildren and often presented them and his children with gifts, not, however, constituting advancements.

The eldest daughter testified that during his third marriage, decedent suffered two or three heart attacks similar to the one from which his death ensued and his children were called to his 'supposed death bed.' Decedent became very 'will conscious.' In the words of his daughter:

'A. * * * We rather kidded about it. It was rather sort of his indoor sport. He always was having a will on the table. We weren't supposed to look at it, but we were supposed to look at it. It was just sort of a teaser. I think he just enjoyed us lookign over what he had. If one of us looked, then we joked, 'You are out of the will,' then the other one would say, 'I was out last week, so we are even.' But dad seriously said, 'You kids will never starve because you are my kids, and I will see to it that you are taken care of.' He gave us that understanding.

'Q. How often did he make a will? Was it one a year or several a year, or what? A. Well, that is hard to say. He might have made six; he may have made a dozen; I don't know.

* * *

* * *

'* * * he came to my house after Mrs. Greenhill, the third Mrs. Greenhill, died; and he said he would make a temporary will. Some day or other he was going to make one that would stick, I guess, but he had me make this will.'

There was further testimony by the eldest daughter that the previous wills made disposition of his estate to his four children and his grandchildren only. At one of his 'supposed death beds' he told Lorna that she need not worry about the second mortgage on her home because he was going to see to it that it would be paid. There was discussion between the father and daughter about naming her as executrix of his estate. On January 21, 1948, she wrote to her father asking that she be relieved of the responsibilities attendant upon acting as executrix of his will because 'the way you're bequeathing your property is so involved that I would never have a free minute for at least fifteen years after your demise.' After expressing her appreciation for the confidence reposed in her by her father as well as for making her 'one of your heirs,' said daughter continued, 'and if after reading this letter you decide to cut me out, that is all right, too. It is your money, and you have a perfect right to do what you want with it. * * *

'In the meantime, come and see me as usual. You are welcome any time. * * *'

Sometime in January, 1948, decedent met Adelle Greenhill, respondent widow herein. He saw her twice between January and July or August, 1948, visited her often thereafter, and they were married November 22, 1948. He continued his friendly visits with his children and his aforesaid wife often accompanied him.

On January 17, 1949, decedent retained Auten F. Bush as his attorney in an unlawful detainer action. The following month he visited his lawyer's office alone for the purpose of having a will drawn. Decedent instructed his attorney to draw the will so that respondent wife would receive all of his estate, subject to legacies of $10.00 to each of his children and each of the widow's chidlren, but if she predeceased him, the estate was to be placed in trust for his grandchildren. Mr. Bush and his partner, Mr. Perry, proceeded to draw the will in accordance with the instructions given. On February 23d, Mr. Bush's secretary made a transcription of a telephone conversation she had with decedent wherein he dictated to her from a memorandum concerning a portion of his assets. Subsequently the memorandum in decedent's handwriting from which the foregoing transcription was made was delivered to Mr....