Mosier's Estate, In re

• Decision Date: 04 November 1966
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Earl G. MOSIER, Incompetent. Lee Nora RICHARDS et al., Appellants, v. Earl G. MOSIER et al., and Security First National Bank, Respondents. Civ. 30230.

Page 447

54 Cal.Rptr. 447

246 Cal.App.2d 164

In the Matter of the ESTATE of Earl G. MOSIER, Incompetent.

Lee Nora RICHARDS et al., Appellants, v. Earl G. MOSIER et al., and Security First National Bank, Respondents.

Civ. 30230.

District Court of Appeal, Second District,

Division 1, California.

Nov. 4, 1966.

Hearing Denied Dec. 27, 1966.

Sanders & Moulton and Robert H. Sanders, Los Angeles, and Andress, Woodgate, Richards & Condos and Wm. Andress, Jr., Dallas, Tex., for appellants.

Leo E. Anderson, Karl L. Davis, Jr., and James M. Orendorff and Meserve, Mumper & Hughes, Los Angeles, for respondents.

LILLIE, Justice.

This is an appeal by Mrs. Richards, the only daughter of Earl G. Mosier, ^* from an order adjudging him to be incompetent within the meaning of section 1460, Probate Code, ¹ appointing J. Robert Meserve as the guardian of his person and Security First National Bank the guardian of his estate; also challenged by this proceeding is the order's additional provision that Mr. Meserve's powers as temporary conservator of Mr. Mosier's person and estate remain in full force until the final determination of any appeal by a party to this controversy. In ordering the issuance of letters to the parties above named, the court denied the petition of Mrs. Richards seeking similar powers for herself upon the ground that she was a resident of Texas and accordingly 'not a fit and proper person' to be appointed either guardian of the person or of the estate of Mr. Mosier. Related to this conclusion is the further finding that Mr. Mosier during all times here pertinent was and is a resident of California and domiciled within this state.

One of the principal points on appeal is the asserted insufficiency of the evidence to support the specific finding that Mr. Mosier became domiciled in California on or about August 5, 1964. Another assignment of error concerns the trial court's failure to give full faith and credit to a Texas judgment obtained by Mrs. Richards in March of 1965 which decreed to the contrary; she contends that personal service having theretofore been had upon Mr. Mosier in California, such judgment (entered on March 11, 1965) declares that he is a resident of Dallas County, Texas, that he is incompetent and that Mrs. Richards as his next of kin is entitled to be (and is) appointed guardian of his person. Other grounds of appeal will be considered seriatim.

For sheer acrimony of presentation on appellants' part this case has few parallels, such bitterness being unfortunately characteristic of litigation involving a third person's estate where the parties are related to such person and to each other. The syndrome, if we may use that word, usually makes its presence known in will contests. In the present case, of course, Mr. Mosier is still in the company of the living; but he is of an advanced age (more than 80), undeniably ill and in need of constant medical attention. He is also possessed of considerable estate--between $400,000 and $500,000. True, appellants profess to have no quarrel with the appointment of respondent bank as guardian of the estate, their criticism being directed to the selection of respondent Meserve as guardian of the person and, in that connection, his integrity as a member of the legal profession is brought under attack. (See A.O.B. pp. 49 et seq.) But appellants insist that the incompetent is not a resident of California; in that regard, the trial court (summing up) observed: 'I haven't any doubt in my mind that if Mr. Mosier were taken back to Texas, that a new Will would soon be executed. There is no question about that. If he is not taken back to Texas, I think the evidence sufficiently shows that we are going to have a Will contest on a Will that has been offered into evidence. So that it wouldn't make any difference which way Mr. Mosier executed a Will, the opposing factions, the brother and sister as distinct and against the daughter are going to make a fight of it because that is the way the feelings have developed in this case and they are the feelings that we see over and over wherever money is at stake.' (Rep.Tr. pp. 948--949.) The sister referred to above is Mrs. Laura Moorhead; a widow in her late seventies, she has resided in Los Angeles for some fifty years. Mr. Mosier's brother, Harold, resides in La Jolla, California; the youngest of the three, he has been Mr. Mosier's business associate for some time.

We first discuss the finding of residence and domicile ² in California upon which appellants have mounted an elaborate assault. Domicile concededly being governed by a person's intention, it is asserted that 'there is absolutely no evidence that Earl Mosier intended to make California his home.' Such assertion is accompanied by a highly partisan recital of the evidence which overlooks or disregards the limited powers of this court, as well as an erroneous statement of the law applicable at this stage of the proceedings. With respect to the latter, it is argued that since respondents claimed a change of Mr. Mosier's domicile elsewhere to California, they had the burden of proof in that regard, citing 16 Cal.Jur.2d 'Domicile,' § 15, p. 661. But that rule applies to the trier of fact only; this court does not determine factual issues. The same is true of the balance of appellants' argument respecting the evidence in its totality received on the issue of domicile. Although appellants say otherwise, such evidence is in conflict; hence 'The evidence must be considered by the appellate court, but not weighed as against the conflicting evidence, and it is immaterial that the appellate court would have determined that the weight of the evidence favored the appellant.' (4 Cal.Jur.2d 'Appeal and Error,' § 606.) Too, in such consideration 'All of the evidence most favorable to the respondent(s) 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.' (In re Estate of Teel, 25 Cal.2d 520, 527, 154 P.2d, 384, 388.) As stated by Witkin (3 Witkin, Cal. Procedure, p. 2250): 'The test * * * is not whether there is substantial conflict, but rather whether there is Substantial evidence in favor of the respondent(s). If this 'substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.' Viewed in the above light, as will hereinafter appear, there is evidence of sufficient substantiality to support the finding challenged.

Our chronological summary of the background facts commences in April of 1964, on the last day of which month Mr. Mosier's wife of 38 years, Georgia, died suddenly in Muskogee, Oklahoma. The couple was then en route to their home in Tulsa after a brief visit with Mrs. Richards, their adopted daughter, at the latter's home in Dallas. (After an earlier marriage terminating in divorce and apparently contributing to a temporary estrangement between father and daughter, Mrs. Richards, whom the Mosiers adopted in 1937, married her present husband, a Dallas practicing attorney, in 1962; she has three children (two sons and one daughter) by the earlier marriage whose ages, at the time of trial, were 19 1/2, 18 1/2 and 17 1/2 years respectively.) After Mrs. Mosier's funeral (May 2) which Mrs. Richards attended, she and her father drove back to Dallas where a room, specially built for the use of either him or his deceased wife at the newly completed Richards' residence, was made ready for his occupancy. However, he found life there unacceptable. He told a Tulsa friend, Mrs. Deatherage, that he could not 'take the kind of life that they live down there,' adding 'there is too much drinking, too much noise. I cannot take it.' These statements were made during one of his subsequent trips back to Tulsa; the Mosier home having been closed following Mrs. Mosier's death, he would stay at a motel and once mentioned to Mrs. Deatherage that 'I haven't a home.' He also told this witness: 'I haven't any place to go and I want to get with some of my blood relations.' To that end, he drove out to California in July of 1964 and visited with his brother in La Jolla for five or six days. According to Harold Mosier, his brother spoke with some disparagement of the Richards family: '* * * they seemed to think that he was an old fool * * * they didn't observe any period of mourning * * * there was too much drinking * * *.' Other derogatory references to the Richardses we need not set forth. Finally, upon his return to Tulsa later that month or early in August, he telephoned his sister in Los Angeles. While they had not seen each other for many years, the evidence indicates that there was more than mere rapport between sister and brother. He told Mrs. Deatherage about his telephone conversation with his sister: 'She invited me to come to visit her * * * I am going out there. I am going right away.' The witness added: 'And he was just so happy.'

Mr. Mosier arrived in Los Angeles on August 5; almost immediately he was admitted to Good Samaritan Hospital where he remained for some five days. His condition was diagnosed as diabetes with some evidence of arterial hypertension, a disturbed bowel condition, heart disease and an emotionally depressed state of mind. Upon leaving the hospital, he went to live with his sister. He opened a personal bank account with a Los Angeles bank. In September he flew back to Tulsa on business; he telephoned Mr. Richards from Tulsa on October 1, stating that he was going back to Los Angeles. Later that month (October) Mrs. Deatherage shipped his clothes to Mrs. Moorhead's home; she did this after a meeting with Mr. Mosier at her Tulsa home. In this same month he again returned to the hospital for treatment; an expert psychiatrist was consulted, and he recommended shock treatments. These were administered in...