Lingenfelter's Estate, In re

Citation241 P.2d 990,38 Cal.2d 571
CourtUnited States State Supreme Court (California)
Decision Date14 March 1952
PartiesIn re LINGENFELTER'S ESTATE DE ARMOND v. TUCKER et al. Sac. 6131.

Brobeck, Phleger & Harrison, San Francisco, Hewitt & McBride, Yuba City, and Gregory Harrison, San Francisco, for appellants.

Robert W. Steel, Ray Manwell and Erling S. Norby, all of Marysville, for respondent.

EDMONDS, Justice.

Madge Tucker, sister of Homer Lingenfelter, proposed for probate the purported will of Vivian Lingenfelter, his deceased widow. The contest of Lenore DeArmond is based upon the asserted incompetency of the testatrix. It is also charged that the will was executed as the result of duress and undue influence exercised by the proponent and her husband. The appeal is from a judgment entered upon a verdict in favor of the contestant and from an order denying a motion for judgment notwithstanding the verdict.

Homer Lingenfelter was an attorney practicing in partnership with Arthur Powell. On the day Vivian executed the purported will, Homer was seriously ill. He died the following day. One week later, Vivian committed suicide.

Powell was called as a witness by both the proponent and the contestant. As Lenore's witness, he testified concerning the execution of the will. Vivian came to see him, he said, accompanied by Madge, who had been staying with her during Homer's illness. Powell was not in his office when the two women arrived. Upon his return shortly thereafter, he found Vivian and Madge waiting for him in his reception room. Powell asked about Homer and Vivian said that he looked better.

Vivian and Powell went into his private office and closed the door. Madge remained in the reception room. Vivian handed Powell a paper which purported to be her holographic will. He testified that she wanted to know 'if it is a good will legally'. That instrument, he said, made bequests to a number of friends and acquaintances. It also included a provision for the care of a pet cat. Powell read the document aloud. As he mentioned each of its provisions, Vivian made some comment, expressing in virtually every instance her reasons for the bequest.

According to Powell, by the document Vivian gave the residue of the estate to Madge and her husband. Powell testified that when he read that clause, Vivian said, 'They are only my in laws but they have always helped Homer and myself when we have needed them most and they have done more for me than my own family ever has.'

Powell testified that he called to her attention the omission of any provision for Homer. Her reply, he said, was that, because Homer was so very ill, 'she didn't expect him to make it and in any event she didn't have much of anything of her own'. The situation, as Powell explained it, was that 'we had really written Homer off'. Powell also testified that Vivian told him she omitted her brothers from her will because one had obtained her share of her mother's estate and the other was adequately cared for.

In other conversations related by Powell, he said that they discussed her property and Homer's separate property. He explained to her that she could will one-half of the community property of herself and Homer. 'She understood if anything happened to one first the other would get' the marital home which was held in joint tenancy. She told Powell that she had no bank account of her own, only a joint account with Homer for household purposes. They also discussed Homer's life insurance. Powell admitted that he did not mention the value of the accounts receivable on the books of the law partnership.

In answer to a question whether he believed Vivian was capable of writing an introductory clause to a will such as that in the holographic instrument, Powell stated: 'I believe she could on either of one or two conditions; one of Homer had helped her, or, two, if she was going by another will, but it was pretty letter perfect.'

Vivian asked Powell to have the document she had written prepared as an attested will, naming Madge as executrix. Certain other minor changes were to be made, such as a more specific provision for care of the cat. Powell testified that he dictated a formal will, using the handwritten document and some notes which he had taken during the conversation as a memorandum. When testifying, Powell could not remember whether the purported holographic will had been dated. He also could not recall what he had done with that document or with his notes, although he had searched for them in his office after Lenore's attorney had asked him to preserve 'all Lingenfelter wills'.

While the formal will was being prepared, Vivian and Madge left the office and walked about town. Upon their return, Madge remained in the reception room while Vivian went into Powell's private office and executed the will. At that time, Powell told the jury, 'very definitely' Vivian was of sound mind. The other attesting witness to the will testified to the same effect.

A number of witnesses described Vivian as being a highly emotional and unstable person. According to the evidence, she would become upset on the slightest provocation. When upset, she would 'disintegrate emotionally'. She would scream and yell, her eyes would become glassy, she would weep uncontrollably and be beyond the reach of reason. She could have her mind diverted from whatever was bothering her at the moment by talk of something else.

There is also testimony that Vivian was a person of very weak will, easily led and very susceptible to suggestions. She was almost completely dependent upon Homer and unable to manage for herself her own shopping and ordinary routine of life. She could not cope with any unusual situation, such as illness, which demanded extra energy or more responsibility, and had to have help to meet it.

Among other subjects which seemed to upset Vivian were relatives, politics, Franco, Stalin, and the stability of the economic system of the world and of the United States. When emotionally disturbed, she would become extremely excited and abusive of anyone who did not share her views. She was jealous of Homer, and during one tantrum of several days' duration she procured a gun. Her suspicions of Homer's infidelity were unwarranted.

Dr. Bone, who had treated Vivian as recently as one week prior to her execution of the will, testified that she was unwell from the time he first knew her. He said she was an advanced psychoneurotic and a borderline case between sanity and insanity in a medical sense. In his opinion, she could be of unsound mind under the stress of excitement, anger or fear. Dr. Kimmel, long Vivian's physician, testified that she was of sound mind, but psychoneurotic to the extent of being barely able to manage her household.

Mrs. Valetta Morton, who saw Vivian between the two visits to Powell's office, testified that her conversation at that time did not make sense. As stated by this witness: 'Well, she was talking about Mr. Lingenfelter being in the hospital one minute. Then she asked me to feel her back and maybe her neck, and to explain she said she was like being in a board, just as stiff as a board, and she said 'I have this severe pain in my head at all times.' Then she would take her glasses, take them off and put them on and raise them up and pull them down, and her eyes looked very glassy.' In Mrs. Morton's opinion, Vivian was of unsound mind at that time.

Mrs. Norby testified that when she saw Vivian a day or two after Homer's death Vivian was very upset. Vivian was perspiring, her hands were shaking, she was gray in the face and hesitant in talking. She cried and hung on to Mrs. Norby and talked 'like anyone that is in grief'. In the opinion of this witness, Vivian had always been of unsound mind and was in that condition at the time of the conversation related to the jury.

Another of Vivian's friends, Marie Countryman, told of attempts to talk with Vivian about the time of Homer's illness. She stated that while Homer was ill, she tried to call Vivian on the telephone. The call was answered by an unidentified woman, who said 'that Vivian was reading or was not able to talk'. After Homer died, the witness called at the Lingenfelter home but no one answered the door. She again telephoned and the person who answered asked her 'to wait a while * * * To wait, not to come out'. A day or two after Homer died, Mrs. Norby visited Vivian at her home. Also, the day after Homer died, Lenore talked to Vivian on the telephone.

According to several witnesses, Vivian often had stated that she considered Madge domineering and greedy. Vivian claimed that Madge had gotten the best of a deal with Homer in connection with their mother's estate. Two weeks before Homer's death, Vivian had said that she did not want Madge to come to her home because she was too domineering. There is testimony quoting Vivian as saying that the Tuckers consistently were conniving to get the Lingenfelter money. The record shows that Vivian expressed her dislike of Madge with screaming and yelling.

Over Madge's objection, evidence was admitted concerning Homer's statements in regard to her and Lenore. This testimony was to the effect that Homer considered the Tuckers to be 'money minded', domineering and completely mercenary. As the witnesses related the conversations, he described relations between himself and Madge as a case of 'dog eat dog', and said that Madge had 'hogged their father's estate'. Homer was very bitter because of Madge's treatment of their mother, whom he said she had killed. He especially hated Madge's husband, called him names, and said that he and Madge never would get a penny of his money.

For many years and at the time of his death, the contestant was Homer's secretary. Testimony on her behalf is to the effect that he was most appreciative of her services. The jury was told of conversations in which Homer had said that, when he was starting to practice law, ...

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