Morgan's Estate, In re
| Decision Date | 27 February 1964 |
| Citation | 225 Cal.App.2d 156,37 Cal.Rptr. 160 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ESTATE of Sylvia A. MORGAN, Deceased. The DOMESTIC AND FOREIGN MISSIONARY SOCIETY OF the PROTESTANT EPISCOPAL CHURCH IN the UNITED STATES of America, Plaintiff and Respondent, v. Alice B. PETERSEN, aka Alice Petersen, Phillip Wemer, Paul E. Wemer, Mrs. Jay Agnew, Mrs. Lucile French, Little Sisters of the Poor of Oakland, Defendants and Appellants. Civ. 20575. |
C. Ray Robinson, John Lockley, San Francisco, William B. Boone, Santa Rosa, of counsel, for appellants Alice B. Petersen, Mrs. Jay Agnew and Mrs. Lucile French.
Howard R. Benson, Oakland, for appellants Phillip Wemer and Paul E. Wemer.
James C. Walsh, Jr., Oakland, for appellants The Little Sisters of the Poor of Oakland.
John D. Gallaher, John Wynne Herron, Herron & Winn, San Francisco, Cyril Viadro, San Francisco, of counsel, for respondent.
This is an appeal from a judgment denying probate of a purported will, which had been entered upon verdicts that the decedent did not have testamentary capacity and that she was acting under undue influence. Proponents appeal also from an order denying motion for judgment notwithstanding verdicts.
On the issue of testamentary capacity, the appeal is based entirely on insufficiency of the evidence to support the verdict.
Sylvia A. Morgan died December 30, 1960. Her age was not known with certainty, but was given for the death certificate by Alice B. Petersen, her companion, an appellant, as 93 years. She had been widowed twice. She had no direct descendants. Her only relatives were her two grandnephews, Phillip Wemer and Paul E. Wemer, who are among the appellants. She left an estate of about $600,000, of which more than $300,000 was in bank deposits. The will under attack was executed November 30, 1960.
Donald D. Lum, M. D., was Mrs. Morgan's physician from February 1960 until her death. He saw her on about ten or twelve occasions, spread through the months, which he counted as professional visits and for which he charged; but he saw her other times on his way through Marina Sanitarium, where she was a patient. His last visit before November 30, 1960, the date of the will, was on November 4, 1960. His opinion was that in the last few months of her life, Mrs. Morgan was senile and confused and of unsound mind; that she had marked arteriosclerosis; that this was throughout her body, including her brain; that she suffered from the progressive effect of the disease; that in the early part of the year she talked with him and co-operated with him, but later in the year, most of the time she didn't recognize him and the nurse would have to introduce him.
William R. Hirst, M. D., an ophthalmologist, examined Mrs. Morgan's eyes on November 1, 1960. Trouble with the lids and tear duct was the problem, but the doctor also examined the retina and found a rather advanced arteriosclerotic change in the retina vessels and hardening of the lens.
Attendants at the sanitarium recounted incidents when testatrix talked of snakes and worms being in her bed, of pigs being on the floor, of men chasing pigs at night, and of elephants being on the ceiling. It was also shown that one morning testatrix told the attendant to wake up the 'boy' first (there was a lady in the next bed); that another day testatrix wanted to get dressed so that she could go down and cook breakfast for her father. In the opinion of Mrs. Law, a registered nurse, testatrix, for the last five months of her life, was senile, which the witness defined as disoriented and suffering from hallucinations, and generally confused, with very, very short lucid periods. Mrs. Wolf, a vocational nurse, with some experience working with the senile, was of the opinion that testatrix in the last few months of her life was confused, disoriented and not of sound mind. Mrs. Paige and Mrs. Stark, both nurses' aides, were of the same opinion. Finally, according to Mrs. Barnes and Mrs. Fitzpatrick, also nurses' aides, testatrix was very confused. These witnesses were not asked questions about decedent's ability to know her estate, the objects of her bounty, and the nature of the testamentary act.
The nurses' record contained but a few notations of testatrix' hallucinations and confusion. It was explained at the trial that once a patient established a pattern of behavior, incidents within that pattern were not recorded. The patient's daily records at the sanitarium are sketchy, and they do not necessarily have the force which appellants contend for them. They do show that the patient had a good night on November 29, the night before the will was executed; but they show the same on October 30, the night before Mr. Bowser's last visit (she was obviously incompetent when he came, as appears below), and on the night before she died, when she was suffering from hypostatic pneumonia.
The testimony of William D. Bowser, a lawyer, is of importance because he is the only lawyer who gave a full account at the trial of conversations with Mrs. Morgan, and his testimony shows that at a time not far removed (one month) before the execution of the challenged will, Mrs. Morgan, while consulting Mr. Bowser about a new will, was hopelessly confused about the main object of bounty, the residuary legatee.
Mr. Bowser drew a will for testatrix on September 5, 1957. He had been sent for by Mrs. Morgan, who in turn had told Mrs. Petersen of him. Mrs. Petersen's acquaintance with Bowser was slight. Mr. Bowser testified fully as to his conversations with Mrs. Morgan, and he made elaborate notes. He drew a relatively minor codicil for her on August 7, 1959. He drew a rather substantially altered will which was executed April 18, 1960. On this occasion, testatrix wished to leave Mr. Bowser, with whom she had no acquaintance except on about three professional occasions, $10,000; but he declined. The residuary legatee in all of these wills, and in two wills previously drawn by Attorney Charles A. Beardsley, was respondent, The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America (hereinafter called the Episcopal Missionary Society). Testatrix declared, in each of the wills, in respect of the residuary bequest, that it was her 'wish that this be used in foreign missionary work, preferably in Red China, India and Africa, for the benefit of people who have not had the advantage of hearing and learning the teachings of Jesus Christ.'
On October 27, 1960, at testatrix' request, Mrs. Petersen telephoned Bowser and informed him that testatrix did not want to leave her property to Red China and that testatrix also wanted to change other parts of her will. Bowser pointed out to Mrs. Petersen that the will did not give anything to Red China, and he further advised Mrs. Petersen that if testatrix wanted the will changed, she should have a nurse contact him, that he was not going to change a will at the request of a beneficiary. Two days later, Mr. Taylor, and old friend of testatrix, contacted Bowser and told him that testatrix wanted to change her will and leave nothing to Red China. Mr. Taylor also informed Bowser that if Bowser was unwilling to call upon testatrix, he would arrange for someone else to attend to the matter. Bowser thereupon agreed to see testatrix the following afternoon.
Accordingly, Bowser visited testatrix at the sanitarium on October 31, 1960. Mrs. Petersen was leaving as Bowser arrived. Bowser explained to testatrix that she was giving the residue of her estate to respondent, and not to Red China, and that respondent would be under no legal obligation to use the money in Red China. As Bowser went back over the first part of the will, testatrix appeared to have a fair grasp of what it meant. But when Bowser reached the residuary clause, testatrix was insistent that it was not correct. In response to Bowser's question as to whom she wished to leave the residue of her estate, testatrix replied that she wanted to leave it to her sister, Christina Pritcher. The sister had been dead since 1949. When Bowser pointed out that the sister was deceased, testatrix insisted that she was alive and working in Santa Rosa. Testatrix' understanding of the situation then deteriorated rapidly, and Bowser came to the conclusion that she was not competent to make a will at that time. According to Bowser, testatrix appeared to be sensible as long as she was asked leading questions. Mr. Bowser left and never saw Mrs. Morgan again.
The testimony of Mrs. Hartung and her daughter, acquaintances, was that testatrix couldn't understand anything when they last visited her on December 4, 1960. Mr. Wulff, who would receive the same legacy, $25,000, whether the will of November 30 or that of April 18 were the prevailing one, testified that testatrix was of unsound mind on Thanksgiving Day, 1960 and did not recognize him, although he had seen her frequently.
Testatrix made five wills and one codicil in the period commencing August 15, 1955 and ending November 30, 1960. A diagram showing the essentials of these follows. As each bequest that is new appears, it is underlined; and as each removal of a bequest appears, it is in a box. The contestant of the November 1960 will is the Episcopal Missionary Society, the residuary legatee in the April 1960 will. The showing in the diagram of the provisions of earlier wills is for the purpose of displaying the continuity of certain bequests over a period of years (including the residuary one to Episcopal Missionary Society).
Executed Executed Executed Codicil Executed Executed
8/15/55 8/19/57 9/5/57...To continue reading
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