Nelson's Estate, In re

• Decision Date: 05 May 1964
• Citation: 38 Cal.Rptr. 459,227 Cal.App.2d 42
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Carl Norman NELSON, Deceased. Lorraine NELSON, Petitioner and Respondent, v. Evelyn KING, Contestant and Appellant. Civ. 21574.

Page 459

38 Cal.Rptr. 459

227 Cal.App.2d 42

In re ESTATE of Carl Norman NELSON, Deceased.

Lorraine NELSON, Petitioner and Respondent, v. Evelyn KING, Contestant and Appellant.

Civ. 21574.

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

May 5, 1964.

Vincent Hallinan, Carl B. Shapiro, Patrick Sarsfield Hallinan, San Francisco, for appellant.

Jacob L. Karesh, Ollie M. Marie-Victoire, San Francisco, for respondent.

BRAY, Presiding Justice.

Contestant in a will contest after probate appeals from summary judgment denying revocation of will and dismissing the contest.

QUESTION PRESENTED.

Were there triable issues of fact? This in turn requires determination of whether the mere fact that decedent had been committed to a state mental hospital and a guardian of his estate appointed, raised an issue of fact as to his capacity thereafter to make the will.

RECORD.

After decedent Carl N. Nelson's death ¹ a holographic will dated December 30, 1958, was admitted to probate. This will left decedent's entire estate to his wife, respondent Lorraine Nelson, who was appointed administratrix with the will annexed. Thereafter appellant, who is decedent's sister, filed contest and petition for revocation of probate of the will on the grounds (a) that decedent was not of sound and disposing mind; (b) that the will had been revoked by testator; (c) that the will was induced by the undue influence of respondent wife and by her promise to secure his release from Napa State Hospital if he made the will, ² that respondent secreted the will from decedent who demanded its return, and further that she told decedent that he could not revoke it while in the hospital. Respondent answered the contest denying all of the above mentioned allegations and moved for summary judgment. The moving papers will be discussed hereinafter. The court found that there were no triable issues of fact and entered judgment accordingly.

SUMMARY JUDGMENTS.

Before considering the affidavits it is well to review the principles applicable to a motion for summary judgment. Justice Molinari of this court in Saporta v. Barbagelata (1963) 220 A.C.A. 469, 474-476, 33 Cal.Rptr. 661, 663, has summarized what are now recognized as the well established rules applying to summary judgments: 'The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial. [Citations.] The object of the proceeding is to discover proof. [Citation.] The affidavits of the moving party are strictly construed and those of his opponent liberally construed. [Citations.] A summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counteraffidavits do not proffer competent and sufficient evidence to present a triable issue of fact. [Citations.] In making this determination the respective affidavits are tested by certain applicable rules. The affidavit of the moving party must satisfy three requirements: (1) It must contain facts sufficient to entitle the moving party to a judgment, i. e., facts establishing every element necessary to sustain a judgment in his favor; (2) such facts must be set forth with particularity, i. e., all requisite evidentiary facts must be stated, and not the ultimate facts or conclusions of law; and (3) the affiant must show that if sworn as a witness he can testify competently to the evidentiary facts contained in the affidavit. [Citations.] These requirements are applicable even though no counteraffidavit is filed, and also where the counteraffidavit is insufficient. [Citations.] The counteraffidavit in opposition to the motion for summary judgment, on the other hand, must meet the following requirements: (1) It must set forth facts with particularity; and (2) it must set forth facts within the personal knowledge of the affiant, to which, as the affidavit shall show affirmatively, the affiant can testify competently if called as a witness. [Citations.] In the light of the rule of liberal construction applicable to affidavits in opposition to the motion for summary judgment, our Supreme Court has held that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and with regard to the requirement that the facts must be set forth 'with particularity,' has stated 'that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts.' [Citations.] Accordingly, it has also been held that counteraffidavits may state ultimate facts and conclusions of law and need not be composed wholly of evidentiary facts. [Citations.] It should be noted, however, that the rule of liberal construction does not go so far as to permit of a counteraffidavit which merely repeats the allegations of the pleadings or which contains no evidentiary facts at all. [Citations.] it should also be noted that the use of depositions in support of, or in opposition to, a motion for summary judgment in conjunction with or in lieu of affidavits is proper. [Citation.]'

With these principles in mind we turn now to the record to determine whether there are any triable issues of fact in this case.

The notice of motion for summary judgment stated that the motion would be based, inter alia, on the transcript of proceedings before the court on July 30 and August 2, 1962 ³ upon certain depositions of appellant, and the declarations of attorney Jacob L. Karesh and Lorraine Nelson. In opposition to the motion appellant filed the declaration of attorney Carl B. Shapiro.

In the probate homestead proceeding hereinbefore mentioned it appears that decedent and respondent were married February 21, 1949. Decedent was then about 50 years of age, his wife 22. In January 1958, respondent filed a divorce action against decedent because of his excessive drinking and irrational behavior. Prior to that time decedent had been in several hospitals for alcoholism. The divorce action was ultimately dismissed (whether before or after decedent's commitment to Napa State Hospital does not appear). In October 1958, at the instigation of the district attorney, decedent was committed to that hospital. In November 1958, respondent was appointed guardian of his estate. Decedent remained in the hospital except for a visit to appellant from May to December 1960, and a visit in March 1961 for some unascertained period. During these visits, decedent was permitted to drink. Before his commitment appellant saw decedent only once or twice a year. Decedent was still under commitment at the time of his death.

The declaration ⁴ of attorney Karesh stated that in the deposition of appellant taken on October 23, 1962, 'When asked upon what facts her allegation of unsound mind was predicated, contestant stated that her only reason was that decedent was a patient in a mental hospital at the time of making the will * * *.

'In a prior deposition taken August 9, 1961, in action No. 147603, contestant stated emphatically that the decedent was not in her opinion incompetent. * * * At that time, she was apparently contending that decedent was only physically ill * * *.

'* * * When asked about the facts on which this ground of contest is predicated, contestant said that as far as she knew decedent did not revoke the will * * *.

'* * * Contestant said she did not know whether or not decedent had confidence in his wife, Lorraine Nelson * * *; and she then admitted that her allegation of undue influence was based upon only supposition and that she had no personal knowledge about it * * *. Again, in reply to a question concerning the allegation that decedent did everything Lorraine Nelson suggested, contestant replied that she could not answer, but that she 'imagined' that he did, but she had no personal knowledge * * *.

'In reply to a question concerning her allegation that Lorraine Nelson induced the execution of the will by a false representation, contestant admitted that it was a just a supposition * * *.' Appellant at no time denied making these statements nor stated in this proceeding that she would testify otherwise.

'Deponent further says, regarding contestant's allegation that deceased's sisters were the true bounty of deceased's affection, that such allegation is manifestly untrue because during the proceedings before this court on July 30, 1962, and August 2, 1962, the following testimony was elicited:

'Edward Dienstag, an attorney at law, testified that decedent had told him that he couldn't get along without his wife, Lorraine Nelson, and didn't want to lose her * * *; and that decedent further told the witness that his wife, Lorraine, was doing a good job of managing the apartment house * * *.

'J. W. Radill, an attorney at law, testified that decedent had told him he was teaching his wife, Lorraine Nelson, to handle the apartment house because she would have to take over when he passed away * * *.

'John P. O'Connell, an attorney at law, testified that decedent had told him that he wanted to provide for his wife * * *; that the witness had the impression that decedent treated the apartment building as 'their mutual property'; and that both decedent and Mrs. Nelson owned it * * *.

'Daniel England, an internal revenue department agent, said that decedent told him the principal purpose of acquiring the apartment house was to make provision for Lorraine Nelson * * * and that decedent's chief concern was to make adequate provision for his wife * * *.

'Leonard Worthington, an attorney, testified that decedent had at one time consulted him about drawing up a will leaving everything to Lorraine Nelson * * *; and that decedent wanted to protect his wife, in spite of a separation * * *' Accompanying the declaration were extracts from the said deposition of appellant and from testimony of the other witnesses mentioned in attorney Karesh's deposition which fully supported the attorney's...