Jamison's Estate, In re

• Decision Date: 08 May 1953
• Citation: 256 P.2d 984,41 Cal.2d 1
• Court: California Supreme Court
• Parties: In re JAMISON'S ESTATE. JAMISON v. JAMISON et al. L. A. 22087.

Page 984

256 P.2d 984

41 Cal.2d 1

In re JAMISON'S ESTATE JAMISON v. JAMISON et al.

L. A. 22087.

Supreme Court of California, in Bank.

May 8, 1953.

Rehearing Denied June 4, 1953.

Frederick W. Mahl, Jr., Los Angeles, Edward Alton, Frank M. Sturgis, Beverly Hills and Allan F. Bullard, San Pedro, for appellants.

Church, Church & Howard and Charles H. Church, Los Angeles, for respondent.

CARTER, Justice.

Chance Jamison, respondent here, petitioned for probate of the holographic will, ¹ dated December 31, 1949, of Arthur C. Jamison, his father. California Trust Company petitioned for the probate of a witnessed will of the decedent, dated May 17, 1948. Frances Johnson, decedent's daughter, for herself and her two minor children, Leanore Patterson, another daughter of the decedent, her children, and Katharine Jamison, the divorced wife of respondent, filed oppositions to the probate of the holographic will. Louise Jamison, surviving widow of decedent, did not oppose it. Under the 1948 will, decedent had left $5,000 to each of his two daughters, to respondent, his son, and to his brother Roy; $15,000 to his wife, Louise; $50,000 to Katharine Jamison; and the residue to his grandchildren. In the 1949, or holographic, will, supra, he left 2% of his estate to his daughter, Leanore Patterson, 5% to his daughter Frances Johnson, 8% to his wife Louise and the balance of 85% to respondent, his son. The 1949 will revoked previous wills. Decedent left an estate of a stipulated value of $237.000.

The grounds of contest of the probate of the holographic will were: (1) That it was not written and signed by decedent; (2) that it was executed under the undue influence of respondent; and (3) that the decedent was mentally incompetent to execute it. Contestants abandoned the first ground on this appeal, leaving only the last two. The case was tried by the court without a jury.

At the close of contestants' case, respondent moved for a nonsuit on each and all of the grounds of contest. The court granted the motion as to the first two grounds and denied it as to the third, mental capacity. The judgment at the close of the case concluded that decedent had executed the 1949 will, having the mental capacity to do so, had not then acted under undue influence, and that the will was entitled to probate. Contestants appeal from that judgment.

The propriety of granting a motion for a nonsuit as to some of the grounds of contest and denying it as to others is doubtful when we speak of nonsuit in its true meaning. That is so because ordinarily a judgment of nonsuit is on the merits, Code Civ.Proc. § 581c, is considered a final disposition of the case and is appealable. 3 Cal.Jur. (2d), Appeal & Error, §§ 50, 39. A nonsuit as to some of the grounds of contest does not dispose of the whole case but only disposes of a portion of it. Thus there would be the possibility of two judgments in the same case (the one of nonsuit and another judgment at the close of the case on issues as to which a nonsuit had been denied) when the general rule is that there should be only one judgment. 3 Cal.Jur. (2d), Appeal & Error, § 40. This would raise the question of whether it would be necessary to appeal from the first judgment of nonsuit on some of the grounds of contest. Further difficulties appear when we note that in reviewing a judgment of nonsuit, the test applied by the appellate court is whether, according to plaintiff (contestants) the benefit of all favorable evidence together with inferences therefrom, it is sufficient to make a case, while if the trial court sitting without a jury, passes upon the weight of the evidence, even though the only evidence produced be that of plaintiff, and gives judgment for defendant, the rule on review is that the evidence must be viewed most favorably to defendant. In a case tried to a jury the proper procedure, rather than granting a motion for nonsuit on some of the grounds, would be for the court to instruct the jury to find for proponent on the issues upon which it thought a nonsuit would be proper. See Estate of Hewitt, 63 Cal.App. 440, 444, 218 P. 778. What was done in the instant case should not be considered as a true nonsuit. Rather the respondent, proponent of the will, by his motion for a nonsuit, in effect said to the court, 'I do not wish to put on any evidence to answer that produced by contestants for I do not think their evidence is sufficient as a matter of law to make a case on the first and second grounds and I am willing that the court decide these issues on that basis as a matter of law, and refrain from weighing the evidence.' The findings of fact made after all the evidence was in, show that is what happened here because the trial court did not make a finding on the issue of undue influence, the second ground of contest, but, in its judgment, stated its conclusion that decedent was not acting under undue influence. We take that to mean that, as a matter of law, the court felt that the evidence on that issue was not sufficient; that it had not purported to weigh the evidence on that issue. Therefore on that issue the scope of review must be the same as that on a nonsuit, while on the finding of mental capacity the test is whether there was sufficient evidence to support the finding.

Contestants' main contention is that the evidence when viewed most favorably to them is sufficient to establish undue influence and that the evidence is insufficient to support the finding of mental capacity.

Turning first to the question of undue influence there is evidence from which the following appears: The testator died on February 11, 1950, at the age of 83, a month and 11 days after he made the 1949 holographic will. He had been married twice, his first wife having predeceased him. He left, surviving him, his second wife, Louise, his son, respondent here, and his wife, Esther, Katharine Johnson, divorced wife of respondent, and Jeanne, their daughter, Leanore Patterson, another daughter, and her four children, Jean, Patricia, Virginia and Robert, Frances Johnson, another daughter, and her two children, Franklin and Jacqueline, Clare and Roy Jamison, his brothers.

The testator had not been actively engaged in business since 1930, except as to the investment of his money. He had been well until the onset of the illness in May, 1949, which culminated in his death. He was a family man and took an active interest in his children and grandchildren. His first wife died in 1945, and he married his surviving widow in 1948. Respondent and his father, the decedent, had been estranged for many years, the latter being displeased with the way his son conducted his life and felt that he was 'no good.' The testator had been a person of strong character tending toward domination as the head of his clan. At the onset of his last illness, he had adamantly maintained that he would not go to a hospital and had remained at home for a week. After he entered the hospital on May 20, 1949, he became 'docile.' At the hospital he had a daily fever, his gall bladder was diseased, he was anemic, and a heart ailment required medication and oxygen. He was suffering from arteriosclerosis and senile dementia. He was mentally confused and showed it in his actions. He could not add figures, indicating, contestants assert, that he could not have computed the percentages in the holographic will. His personal physician testified that he was of unsound mind on December 31, 1949, the date of the holographic will. He left the hospital and returned to his home where he remained until his death on February 11, 1950, still suffering from his various ailments and under constant nursing care.

There is thus a showing that decedent was in such a mental condition on December 31, 1949, when the will was purportedly executed, that he would be easily influenced; that being estranged from respondent, his son, and being fond of his grandchildren and daughters and his son's first wife, it would not be probable that he would leave most of his estate to respondent. There were aspects of unnaturalness and undue profiting by respondent under the 1949 will, by which he received much more than he did under the 1948 will. These are all factors bearing upon the issue of undue influence. Estate of Teel, 25 Cal.2d 520, 154 P.2d 384; Estate of Lingenfelter, 38 Cal.2d 571, 241 P.2d 990. Of course, standing alone these factors are insufficient to establish undue influence. The proponent must also be active in procuring the execution of the will. Estate of Teel, supra, 25 Cal.2d 520, 154 P.2d 384; Estate of Lingenfelter, supra, 38 Cal.2d 571, 241 P.2d 990. Such activity may be established by inference, that is, circumstantial evidence. Estate of Abert, 91 Cal.App.2d 50, 204 P.2d 347; Estate of Hannam, 106 Cal.App.2d 782, 236 P.2d 208; Estate of Leahy, 5 Cal.2d 301, 54 P.2d 704; Estate of Sproston, 4 Cal.2d 717, 52 P.2d 924; Estate of Kilborn, 162 Cal. 4, 120 P. 762; In re McDevitt, 95 Cal. 17, 30 P. 101; see cases collected 26 Cal.Jur. 760-61.

In the instant case, according to respondent's testimony under section 2055 of the Code of Civil Procedure, the will which was dated December 31, 1949, was handed to him by decedent on February 7, 1950, 38 days after its date and 4 days before his death. This occurrence took place in decedent's home while respondent was visiting him, although the decedent did not say, and respondent did not know, that what was handed to him was a will. Decedent said he did not have long to live, handed him the will and cautioned respondent not to show it to anyone. Respondent did not know when the will was executed. On this review, guided by the same principles as pertaining in a nonsuit, the portion of such testimony favorable to contestants must be accepted and that which is unfavorable rejected. The fact remains that when the testator died, respondent had possession of the will and offered it for probate.

There is evidence that res...