Lauth's Estate, In re

• Decision Date: 26 April 1960
• Citation: 180 Cal.App.2d 313,4 Cal.Rptr. 764
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE OF Fanny LAUTH, also known as Fanny Saylor Lauth, also known as Fannie S. Lauth. CHICAGO HISTORICAL SOCIETY, INC., an Illinois corporation, Illinois Masonic Children's Home, an Illinois not for profit corporation, Dean Ernest Holmes and the Most Reverend Bernard J. Sheil, Contestants and Respondents, v. Sam M. LAW, individually and as Executor of the purported Last Will and Testament of Fanny S. Lauth, Olivette C. Law and Sam Law, individually, Bessie A. McClenahan, Sophie Reusser, Edward N. Peck, Alice Berwin, Betty Reynolds, Dean Holmes, Glenn Gissler and Ruth Gissler, et al., Respondents and Appellants. Civ. 24161.

Page 764

4 Cal.Rptr. 764

180 Cal.App.2d 313

In the Matter of the ESTATE OF Fanny LAUTH, also known as Fanny Saylor Lauth, also known as Fannie S. Lauth.

CHICAGO HISTORICAL SOCIETY, INC., an Illinois corporation, Illinois Masonic Children's Home, an Illinois not for profit corporation, Dean Ernest Holmes and the Most Reverend Bernard J. Sheil, Contestants and Respondents, v. Sam M. LAW, individually and as Executor of the purported Last Will and Testament of Fanny S. Lauth, Olivette C. Law and Sam Law, individually, Bessie A. McClenahan, Sophie Reusser, Edward N. Peck, Alice Berwin, Betty Reynolds, Dean Holmes, Glenn Gissler and Ruth Gissler, et al., Respondents and Appellants.

Civ. 24161.

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

April 26, 1960.

Rehearing Denied May 20, 1960.

Hearing Denied June 22, 1960.

Wright, Wright, Goldwater & Wright, Los Angeles, for contestants and respondents.

Hill, Farrer & Burrill, Los Angeles, for respondents and appellants.

FOURT, Justice.

This is an appeal from a judgment entered on the special verdict of a jury, setting aside the probate of the decedent's purported last will and testament on two grounds; namely (1) incompetency and (2) undue influence. The contest was filed after the purported will had been admitted to probate.

The jury found affirmatively on each of the two issues, namely (1) that decedent lacked the requisite mental capacity at the time of executing her will on August 13, 1952, and (2) that undue influence was exerted by Sam Law who was both the executor and also one of the major beneficiaries.

The contestants are corporate charities of Illinois, and Dean Ernest Holmes, of the Church of Religious Science. Contestants (charities) were named as the principal beneficiaries in decedent's prior (1945) will. The earlier will was executed by decedent on June 30, 1945, and a codicil thereto was executed on August 2, 1945.

Dean Ernest Holmes was named both as a contestant and as a respondent.

Appellants are the proponents of the will dated August 13, 1952, which was nullified on both grounds by the jury's verdict. The proponents-appellants are: Sam M. Law, the named executor and one of the beneficiaries; Olivette C. Law, wife of Sam M. Law and first cousin of decedent; Bessie A. McClenahan, sister of Olivette C. Law and first cousin of decedent. Olivette and Bessie are decedent's sole heirs at law.

The other respondents named in the contest after probate below are: Sophie Reusser; Edward N. Peck, Alice Berwin, Betty Reynolds, Dean Holmes (also a contestant); Glenn Gissler and Ruth Gissler defaulted and did not join Sam M. Law and his wife, Olivette C. Law, and her sister, Bessie A. McClenahan, in supporting the 1952 will, or in resisting the contest after probate filed thereto by the Illinois charities and by Dean Ernest Holmes.

At the conclusion of contestants' case, a motion for nonsuit was made, and denied by the trial court. A motion for a directed verdict was also made and denied. Finally, motions for a judgment n. o. v., and for a new trial were made and denied by the court.

The contest having occurred after the will was admitted to probate, it was established prima facie that the will was duly executed by a testatrix who was competent and free from undue influence. The burden of proof rested upon the contestants to establish invalidity. In re Estate of Baird, 176 Cal. 381, 384, 168 P. 561. Testamentary capacity is presumed to exist until the contrary is established. The ultimate question becomes what actually was the ststatrix's mental state at the moment of the testamentary act. In re Estate of Goddard, 164 Cal.App.2d 152, 157, 330 P.2d 399; In re Estate of Russell, 80 Cal.App.2d 711, 714-715, 182 P.2d 318.

Appellants' first contention is that there was no evidence to support the jury's conclusion that the decedent was mentally incompetent to make the will of August 13, 1952. In re Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689 sets forth the judicial limitations where the question on appeal is the sufficiency of the evidence to support the findings of the jury. It is stated at page 223 of 23 Cal.2d, at page 690 of 143 P.2d:

'The rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. (In re Estate of Snowball [1910], 157 Cal. 301, 305, 107 P. 598; In re Estate of Barr [1924], 69 Cal.App. 16, 33, 230 P. 181.) The rule as to our province is: 'In reviewing the evidence * * * all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary * * * principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. * * *' (Emphasis added.)

Our function then is to ascertain whether there is any substantial evidence in the record which supports the verdict. Portions of the record are set forth in the footnote hereto. ¹

A reading of the entire record convinces us that there is substantial evidence to support the contenton and verdict that decedent lacked the requisite mental capacity to execute a will at the time she did so, on August 13, 1952. 'The trier of fact is the sole judge of the credibility and weight of the evidence in a will contest the same as in any other case.' In re Estate of Teel, 25 Cal.2d 520, 526, 154 P.2d 384, 387. This court examines the evidence but does not weigh it. As said in Re Estate of Teel, 25 Cal.2d at page 527, 154 P.2d at page 388: 'All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.' See, also: In re Estate of Moore, 143 Cal.App.2d 64, 67, 300 P.2d 110; In re Estate of Bould, 135 Cal.App.2d 260, 263-264, 287 P.2d 8, 289 P.2d 15.

There was a conflict in the evidence in this case and the trier of fact upon substantial evidence resolved that conflict against the proponents of the August 13, 1952 will. When that determination was so made it should be binding upon this Court unless the evidence against such determination is such that reasonable minds could come to no other but contrary conclusion.

It was said in Re Estate of Fosselman, 48 Cal.2d 179, at pages 185, 186, 308 P.2d 336, 340:

'Testamentary incompetency on a given day, however, may be proved by evidence of incompetency at times prior to and after the day in question. (Citations.) Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable (Citations), perhaps there is even a legal presumption (Citations) that the incompetency continues to exist. Such an inference is particularly strong in a case such as this in which the decedent was suffering from senile dementia, a mental disorder that becomes progressively worse. (Citations.) 'Senile dementia begins gradually, is progressive in character and in its advanced stages 'the brain is well-nigh stripped of its functions.' The difficulty lies in determining the point at which in its progress it has so imparied the faculties that they fall below the mark of legal capacity.' * * *'

We cannot say that as a matter of law the inferences drawn in this case were unreasonable nor can we say that the determination made by the jury was unreasonable.

Appellants' second contention is that the testatrix was not subjected to any undue influence and that her last will, executed on August 13, 1952, was her free, voluntary and uncontrolled testamentary act.

Appellants have correctly pointed out that if the jury's verdict can be sustained on either of the issues submitted to it, the judgment below must be affirmed. A pertinent statement is made in Re Estate of Wolf, 174 Cal.App.2d 144, 344 P.2d 37, 41, as follows:

'There being one clear sustained and sufficient finding upon which the judgment may rest, the sufficiency of the evidence to sustain other findings becomes immaterial. (Logan v. Forster, 114 Cal.App.2d 587, 602, 250 P.2d 730; Spaulding v. Jones, 117 Cal.App.2d 541, 554, 256 P.2d 637.) Hence, we need not consider the finding that the will was the product of undue influence.'

We have determined that there was substantial evidence to sustain the contention that the testatrix lacked the requisite mental capacity to make a will on August 13, 1952, and therefore it will not be necessary to consider the contention that the will was the product of undue influence.

The next asserted error is that the trial court erred in respect to the admission of Exhibit 12 (i. e. a letter from Sam Law to a Mr. Colwell dated August 12, 1951). Mr. Colwell had been an officer with the Northern Trust Company of Illinois, and he had handled many of decedent's business affairs.

The letter provides in part:

'Knowing you personally as we do and knowing that you too have a personal interest in Mrs. Lauth I am going to trust you to keep the contents of this letter Secret. It is not for the Bank and I do not want it on record. Please. I want it to be strictly between you and me and off the record.

* * *

* * *

'Mrs. Law and I love Fanny dearly and we have tried to help Fanny in every way we can. Mrs. Law and her sister are Mrs. Lauth's nearest and perhaps her only blood relations. The fact remains that she is a free agent and does still make all her own decisions.

'I could go on and on but knowing her and her situation as you do I am sure you have the picture in mind. There are however a few points on which you can advise me better than anyone else.

'1. What about Dr. Fifield with...