Harvey's Estate, In re

• Decision Date: 24 July 1956
• Citation: 299 P.2d 712,143 Cal.App.2d 368
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE of James E. HARVEY, Deceased. Annie G. HARVEY, Contestant-Appellant, v. Jesse E. HARVEY and Jesse M. Harvey, Proponents-Respondents. Civ. 21603.

Page 712

299 P.2d 712

143 Cal.App.2d 368

ESTATE of James E. HARVEY, Deceased.

Annie G. HARVEY, Contestant-Appellant, v. Jesse E. HARVEY and Jesse M. Harvey, Proponents-Respondents.

Civ. 21603.

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

July 24, 1956.

Littlejohn & Callister and Roy Littlejohn, Los Angeles, for appellant.

William F. Peters, Los Angeles, for respondents.

ASHBURN, Justice.

Appeal by decedent's widow from judgment and order admitting to probate his will of July 24, 1950, denying her petition for letters of administration, dismissing her contest and appointing as executors testator's brother, Jesse E. Harvey (Jesse, Sr.) and his nephew, Jesse M. Harvey (Jesse, Jr.).

Though numerous grounds of contest were alleged, no evidence of substantiality was introduced in support of any of them except the claim that the will was not executed by testator, not actually signed by him. The case was tried without a jury and the trial court found that the will was duly executed by the testator on the date it bears. Appellant's counsel initially assert in their opening brief that the evidence conclusively establishes the contrary, but before the argument has proceeded far it degenerates into one of the incidence of the preponderance of the evidence. Under the impact of respondents' arguments the reply brief claims no more than a preponderance in favor of contestant.

The appellate courts are required to reiterate from day to day, and with unremitting monotony, these fundamental principles of review: That the appellante court cannot weigh the evidence to determine where the preponderance lies; that its duty begins and ends with a determination of whether there is any substantial evidence, contradicted or uncontradicted, which supports the finding of fact; and that when two or more inferences reasonably can be deduced from the evidence the reviewing court cannot substitute its own inferences for those of the trial court. See Primm v. Primm, 46 Cal.2d 690, 299 P.2d 231. The evidence thus construed presents the following situation.

The will, executed on July 24, 1950, left the family home and furnishings to the wife, provided for a family allowance for her during probate, and placed the remainder of the estate in a trust which endures for ten years from testator's death until one of his two daughters becomes twenty-five years old. This latter event will occur about six years after testator's death, which was on December 13, 1954. Income from the trust goes one-fourth to the wife, one-fourth to each of testator's two daughters, and one-fourth to his sister, Ruby Foulks. In the event of the death of any beneficiary her share goes to the survivors. Principal is to be distributed upon termination of the trust in the same manner as the income, namely, one-fourth to the wife and to each of the other beneficiaries. The will also includes a distress clause in favor of the wife. The executors are Jesse, Sr. and Jesse, Jr., neither of whom takes anything under the will except reasonable compensation for his services.

Decedent was one of three brothers who operated a concern engaged in the rock and gravel business under the name of Harvey Bros. One brother, Frank, predeceased testator, dying in 1946. About four days before the date of the will decedent asked his nephew, Jesse, Jr., who was office manager of the plant of Harvey Bros., to have the firm's attorney draw a new will for him; he told Jesse what he desired it to contain, and asked him to write it down; Jesse did so and read his notes back to his uncle. He then telephoned the lawyer, instructed him to draw the will and read his notes 'as to what he wishes in the new will.' Attorney Bridges took the information and prepared the will. In about two days Jesse received it at the attorney's office and took it to the plant. Testator soon called and asked Jesse if he had the new will. Being assured of that, he came to the plant on July 24th, asked to see the will and the notes which Jesse previously had made. He read the will and the notes for a long period of time, said he wanted to sign to will and asked Jesse to get some witnesses. The latter went next door to the Universal Cast-Iron Co., asked Mr. Russell E. Persion and Mr. Leslie M. Percey to act in that capacity. They soon arrived at the Harvey Bros. plant and were taken into Jesse, Jr.'s office where testator was seated. The door was closed, testator produced the will and asked Persion and Percey if they were there to witness the signing of his will. They replied in the affirmative and Jesse, Jr. testified that testator then dated and signed the will and each of the witnesses also signed it. All this was done in the presence of Jesse. He produced his original notes in court. The original will was shown him and he identified it as the one signed by decedent and the two witnesses on that day, July 24, 1950. He knew his uncle's signature, having seen it innumerable times, and testified that he saw it affixed to the will on the occasion in question.

The witness' father, Jesse, Sr., had been in the adjoining office during the execution of the will. Testator having taken the will into his own possession, came into the room where Jesse, Sr. was, told him that he had just signed his will and made him and his son executors, and asked him to read it over to see if he would accept the appointment. He did read it and said he would accept. The will was handed back to the testator who headed toward the room where the office safe was located. Wh...