Stauffer's Estate, In re

• Decision Date: 31 May 1956
• Citation: 142 Cal.App.2d 35,297 P.2d 1029
• Parties: In the Matter of the ESTATE of Harry C. STAUFFER, Deceased. R. N. PHILPOT and Hilda Kirtlan, Proponents and Appellants, Gladys Wollenberg, Proponent and Appellant, v. Myra Stauffer HENRY, Bernard S. Henry, Juanita Bayley, Robert J. Bayley, Edna Dyer, Alice Stauffer Taylor, Lucille Henry, Stephen R. Bayley and Marjorie Stauffer, Contestants and Respondents. Civ. 8689.
• Court: California Court of Appeals Court of Appeals

Page 1029

297 P.2d 1029

142 Cal.App.2d 35

In the Matter of the ESTATE of Harry C. STAUFFER, Deceased.

R. N. PHILPOT and Hilda Kirtlan, Proponents and Appellants, Gladys Wollenberg, Proponent and Appellant, v. Myra Stauffer HENRY, Bernard S. Henry, Juanita Bayley, Robert J. Bayley, Edna Dyer, Alice Stauffer Taylor, Lucille Henry, Stephen R. Bayley and Marjorie Stauffer, Contestants and Respondents.

Civ. 8689.

District Court of Appeal, Third District, California.

May 31, 1956.

Rehearing Denied June 22, 1956.

Hearing Denied July 24, 1956.

Lewis, Lewis & Lewis, Pierce & Brown, Sacramento, for appellants Philpot and Kirtlan.

A. M. Mull, Jr., Wilke & Fleury, Sacramento, for appellant Wollenberg.

Anthony J. Kennedy, Devin, Diepenbrock & Wulff, Sacramento, for respondents.

PEEK, Justice.

At the conclusion of a contest instituted by the heirs at law of the decedent, Harry C. Stauffer, the court by its judgment denied probate of the will offered by the proponents, R. N. Philpot and Hilda Kirtlan, except as to two items thereof. Propoents' motion for a new trial was denied, and this appeal followed.

A summary of the pertinent facts as shown by the rather voluminous record indicates that on March 25, 1944, eight years prior to his death and when he was approximately 68 years of age, the decedent, Harry C. Stauffer, executed the will in question. He was one of a large family; however, at the time of his death he was survived by only one sister, Myra S. Henry, aged 87, one of the contestants, and by numerous nieces and nephews, three of whom are also contestants herein. None of these relatives had any contact with Harry for more than 15 years prior to his death, and at the time thereof in January of 1952, none of them attended the funeral or recognized his death in any way. He had been married and divorced, and his one son of that marriage had predeceased him. He was a graduate pharmacist and had at one time operated a pharmacy in Sacramento. From 1916, when he disposed of his pharmacy, until 1929 he lived with a friend in the Fair Oaks district, a suburban Sacramento area, and worked at odd jobs for his friend. In 1921 he suffered a stroke which left him slightly disabled. In 1929 he was employed as a night watchman, but he had no regular work thereafter. In 1934 he returned to his mother's home in Sacramento where he lived with her and his unmarried sister, Ida. This home which was an old style, three-story mansion had been used by the family for a long period of time and was across the street from the real estate office of one of the proponents and appellants herein, R. N. Philpot. From approximately 1931 Philpot, at the request of the mother, handled all of the Stauffer family affairs.

In the middle Thirties, following a request from the mother for advice and assistance in her affairs, Philpot suggested that the home be razed and a store and office building be erected on the site. Through his efforts such a project was ultimately financed and completed in 1938 and 1939. A new home was purchased and Ida and Harry lived there until her death. Shortly after Harry executed the will in question this house was sold, and from then on he lived by himself until his death in 1952. During all of this time, as the trial judge noted in his memorandum opinion, Philpot attended to all business matters pertaining to the property. He prepared the deed by which the mother transferred title of that property to Harry's sister, Lille; also the deed by which Lillie transferred the same to the sister, Ida; and the deed by which Harry took title from Ida. All of these deeds were kept by Philpot in his office and subsequently he had them recorded. He negotiated loans, employed contractors, secured tenants, prepared leases and all documents necessary to the accomplishing of these purposes.

Although the record contains no evidence as to the value of the property at the time the will was executed, it does appear that largely through Philpot's efforts the value of the property rose from approximately $25,000 in the early 1930s to approximately $120,000 in 1949. All of the funds received from rentals and other sources which belonged to the Stauffer family were placed in a personal bank account maintained by Philpot, and all funds disbursed for the benefit of the Stauffers were paid by Philpot out of this account. The appellant Hilda Kirtlan, who was Philpot's longtime secretary, personally kept the various accounts involved. Following Ida's death, Philpot continued his management of Stauffer family affairs. There was evdience that during this entire time Harry drank quite heavily and took no responsibility whatsoever for his estate, allowing Philpot the complete management and control thereof. In addition he had Harry's power of attorney.

At the time of the execution of Harry's will, his estate consisted of the property in question which was rented for a term of years at the rate of $761 per month with some additional funds received as rental for an adjacent parking area; and, prior to the sale of the 34th street residential property, a further sum of $25 per month was received as rent for a small house on the rear of the lot. There were dividends which Harry collected on some stock; and his son had been paying $35 per month to Philpot for his father's support. This stopped upon the death of the son, but in the meantime the rental on the store building had increased to $1,845 per month and the parking lot to $125 per month. Against this were the disbursements necessary for payment on the $45,000 loan against the property and the attendant expenses such as taxes and utilities. During the year prior to the execution of the will Harry received an average of $124 monthly which he obtained in small amounts by calling twice a week at Philpot's office.

On November 10, 1938, Ida gave Philpot a deed to certain grazing land in Glenn County which, according to Philpot, he subsequently sold for $500. In September of 1942 Ida also gave Philpot a promissory note secured by a second deed of trust on the Sacramento property in the sum of $23,000 with interest compounded at the rate of 6 percent per annum. According to Philpot this note and deed of trust were given to him at Ida's suggestion because, as she stated, she had no money and desired to make payment for his services to the family during her lifetime for which he had received no compensation.

By the terms of his will, decedent devised, in Item 2, to Jessie Snyder, certain improved real property (the 34th street property which was sold prior to his death) 'For kindnesses show me during my life * * *.' By Item 3 he devised to Philpot and Kirtlan the improved business property, 'For services rendered to me and to my family for the past fifteen years, for which no compensation has been paid to them, and for kindnesses shown to me during my lifetime * * *.' By Item 4 he gave to Michael David Littlefield, a minor, the sum of $5,000 to be placed in trust with Philpot and to be handled and invested by him until David reached his majority. By Item 5 he gave to certain named relatives the sum of $5 each. By Item 6 it was provided that if there was 'sufficient revenue from the estate to warrant' it, $50 should be paid monthly to his sister Myra S. Henry. Lastly by Item 7, he provided that all of the residue of his estate should be 'divided share and share alike' among Philpot, Snyder and Gladys Wollenberg, his former daughter-in-law. He also named Philpot as executor without bond.

According to Philpot, the evidence concerning the circumstances surrounding the execution of the will was that several months prior thereto Harry called at Philpot's office saying that he desired to make his will; that he knew about the $23,000 note; and that Philpot told him if he would tell Miss Kirtlan what he wanted, she would type if for him. This was corroborated by Kirtlan who stated he had also talked with her; that thereafter he came to the office with a draft of a will which he had prepared in his own handwriting; that she thereupon typed the will, merely copying from the draft which Harry had given her; and that following the execution of the will Harry took the original draft with him, leaving the executed will with Philpot. The court noted in particular the similarity between Harry's will and that of Ida which Kirtlan had likewise typed and acknowledged in 1938. Excepting the dispositive clauses, the two wills were practically duplicates as the trial court stated, 'word for word, phrase for phrase, and clause for clause. Even the spacing and punctuation are identical, including the odd manner of putting the initials of Philpot ('R'. 'N'.) in quotation marks.'

In discussing the question of undue influence, the trial court noted that the evidence clearly established the existence of a confidential relationship between Harry and Philpot which was admitted by all parties, and therefore the activity of Philpot and Kirtlan in the preparation of the will and the undue profits which the will granted to them raised a presumption of undue influence and cast upon the proponents the burden of dispelling the same. To overcome this presumption Philpot and Kirtlan contend that the provisions of the will are not unnatural in that Harry had an abiding dislike for his relatives, and hence it was quite natural for him to reward the only persons who had been helpful to him; that the evidence of undue profit is at best only conjectural since there was no evidence as to the value of the property at the time the will was executed; that while there may have been opportunity for Philpot and Kirtlan to control Harry's testamentary act, that fact standing alone, unless coupled with a showing of activity of their part was insufficient; and that there was no evidence as to Harry's susceptibility to influence or subversion--in fact it was all to the contrary, and the court specifically noted this characteristic. In summation of the...