Hart v. Gudger
| Decision Date | 15 August 1957 |
| Citation | 314 P.2d 549,153 Cal.App.2d 217 |
| Court | California Court of Appeals Court of Appeals |
| Parties | William S. HART, Jr., Plaintiff and Appellant, v. Francis GUDGER, Executor of the Last Will and Testament of William S. Hart, Deceased, County of Los Angeles, State of California, a body politic and Corporate, The State of California, Frances V. Bierck, Mary Ellen Hogewoning, Beatrice Hogewoning Hunt, Commercial Club of Billings, Montana, City of Billings, Montana, Los Angeles Society for the Prevention of Cruelty to Animals, The Lambs, Inc., of New York City, New York, The Players Club of New York City, New York, The Masquers of Hollywood, California, Actors Fund of New York City, New York, St. John's Church of Los Angeles, California, The Father Niel Dodd Foundation of Hollywood, California, The Braille Institute of America, Inc., a corporation, et al., Defendants, Francis Gudger, Executor of the Last Will and Testament of William S. Hart, Deceased, and County of Los Angeles, Respondents. Civ. 21834. |
S. V. O. Prichard, Hollywood, for appellant.
Spray, Gould & Bowers, and Krystal & Paradise, Los Angeles, for respondent executor.
Harold W. Kennedy, County Counsel of Los Angeles County, Baldo M. Kristovich, Deputy County Counsel, Los Angeles, for respondent county.
This is an appeal by the plaintiff from a judgment entered by the trial court after having sustained, without leave to amend, the separate demurrers of defendants Francis Gudger, the executor of the last will and testament of William S. Hart, deceased, and the County of Los Angeles (the principal and residuary legatee under said will) to the plaintiff's third amended complaint.
In January, 1947, the appellant instituted a contest of the probate of the will of his father, William S. Hart, Sr. He was unsuccessful in that litigation and judgment went against him. By the third amended complaint in the matter now before us the appellant sought to state a cause of action to vacate and set aside the previous judgment of the superior court in the will contest in his father's estate, (In re Estate of Hart, 1951, 107 Cal.App.2d 60, 236 P.2d 884, wherein he alleged, among other things as grounds for the contest, both duress and undue influence) upon the ground that the judgment in the will contest was procured by the perpetration of an extrinsic fraud.
The learned trial judge prepared an exhaustive and carefully written memorandum on sustaining the general demurrers, which we adopt as a part of this opinion and which reads as follows:
'General demurrers are urged against the Third Amended Complaint to set aside a judgment against plaintiff, contesting the will of his father, William S. Hart. The verdict and judgment sustained the validity of the will, against his objections, and has long since become final.
'To upset this final judgment, plaintiff contends that evidence material to the contest--the 'last page' of his aunt's will--was fraudulently suppressed by the defendants or some of them.
'Facts must be alleged--not conclusions given--showing a different judgment would have resulted in the will contest had the alleged fraud not occurred; or, as is stated in other cases, that he has 'a sufficiently meritorious claim to entitle him to a trial of the issue' upon the allegations made. There must be reasonable certainty that plaintiff would have emerged in a more advantageous position. Wilson v. Wilson, 55 Cal.App.2d 421, 427 ; Huron College v. Yetter, 78 Cal.App.2d 145, 150-151 ; Olivera v. Grace, 19 Cal.2d 570, 578-579 [122 P.2d 564, 140 A.L.R. 1328]; Parsons v. Weis, 144 Cal. 410, 417-418 .
'In the Third Amended Complaint do such facts appear? Assuming the facts alleged are true, do they tend to establish undue influence, as required in pleading? ([In re] Estate of Bixler, 194 Cal. 585, 589 .) Do they show that the 'last page' was so material as to promise with reasonable certainty that had it been produced, the result would have been different?
'Upon the present Third Amended Complaint, plaintiff cannot avoid any deficiencies of the prior verified complaints by omitting the allegations previously made without explanation. It is proper for the court to consider the prior pleasings. Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 716 [128 P.2d 522, 141 A.L.R. 1358]; Cf. Neet v. Holmes, 25 Cal.2d 447, 469 ; Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 724 ; Neal v. Bank of America, 93 Cal.App.2d 678, 682 ; Slavin v. [City of] Glendale, 97 Cal.App.2d 407, 410 ; Uchida [Inv. Co.] v. Inagaki, 108 Cal.App.2d 647, 654 ; Pike v. Archibald, 118 Cal.App.2d 114, 118 ; McDonald v. [State of] California, 130 Cal.App.2d 793, 795-796 ; Owens v. Traverso, 125 Cal.App.2d 803, 808 ; Bollotin v. [California] State Personnel Board, 131 Cal.App.2d 197, 202 ; Lee v. Hensley, 103 Cal.App.2d 697, 709 .
This is particularly true, since request is made that the general demurrer be sustained without leave to amend. Whether a cause of action still might be stated under the existing law may be gauged by the totality of sworn facts presented in the various verified complaints considered to date. (Williamson v. Joyce, 137 Cal. 151 .) They will be considered in determining whether the complaint can be truthfully amended so as to obviate any legal objection as to its sufficiency.
'The cases cited establish the proposition that however unnatural and harsh courts or juries may believe a will to be, when it disinherits a son or daughter, it is within the legal power of a competent testator to will his property as he sees fit. It at the time of writing the will he has full freedom of choice to express his wishes, it will not be disturbed. His information may be faulty and his prejdices unrational; but if the testamentary act is free from duress and overpowering influence, at the time of the execution of the will, the law sustains it. ([In re] Estate of Sheppard, 149 Cal. 219 ; [In re] Estate of Relph, 192 Cal. 451, 465 .)
'Before considering the details of the Third Amended Complaint, a general summary of the facts which thus far have been alleged will be helpful. From the various verified complaints it appears:
'1. William S. Hart died June 23, 1946, and a will dated September 9, 1944, was admitted to probate (Superior Court file No. 257566) on July 26, 1946. The estate consisted completely or almost entirely of property inherited from his sister, Mary E. Hart, who died on October 1, 1943.
'2. Relative to her estate, it has been alleged:
'3. There was another and a later holographic will (Complaint * * *); a document entirely written, dated, and signed by her, bearing date of September 23, 1940, (Third Amended Complaint * * *), 'wherein, among other items, she made provision for certain specific legacies and gifts to charity' (Third Amended Complaint * * *), 'and said document executed by Mary E. Hart contained provision for the maintenance of the William S. Hart Museum and Park at Newhall;' (Third Amended Complaint * * *). It likewise appears provision was made 'as to monies and properties to her sister, Mrs. Frances V. Bierck, for whom decedent [William S. Hart] had a dislike, and to her two grandnieces, said Mary Ellen Hogewoning and Beatrice Hogewoning Hunt Cochrane, * * * and also made certain that monies would be provided for the establishment, creation, and maintenance of three monuments that would perpetuate the name of decedent [William S. Hart] and said Mary S. Hart; that two of said monuments under said Mary E. Hart holographic will were to be created from * * * the said Horseshoe Ranch located at Newhall, California, and said home, located at 8341 De Longpre Avenue, Hollywood, California' (Complaint * * *); and the devisees and legatees are set forth in the Third Amended Complaint, paragraph III, which by paragraph V are said to be substantially those named by her.
'It was alleged that the 'last page' of such document read 'Re- Will Sept. 23/40. My brother Wm. S. Hart has proven to me he is not fully responsible for his actions, therefore I appoint Wm. S. Hart Jr. as executor of my estate. Am mailing MEH Westport Conn copy of this page 'just in case'
Mary E. Hart'
MEH was Mary Ellen Hogewoning, grand-niece of Mary E. Hart, living at all times herein concerned in Connecticut.
'4. This document, including the 'last page', was exhibited to him (Third Amended Complaint * * *). William S. Hart had reason to believe this was his sister's last will and testament (Third Amended Complaint * * *) in which she had substantially disinherited him.
'Upon the probate of her estate, following her death on October 1, 1943:
'That the original first copy of said Last Page of said holographic will mysteriously disappeared and was not submitted to the probate court; that said decedent [William S. Hart]...
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