Wellauer's Estate, In re

• Decision Date: 05 November 1951
• Parties: In re WELLAUER'S ESTATE. Civ. 7982.
• Court: California Court of Appeals Court of Appeals

Page 906

236 P.2d 906

107 Cal.App.2d 268

In re WELLAUER'S ESTATE.

Civ. 7982.

District Court of Appeal, Third District, California.

Nov. 5, 1951.

Rehearing Denied Nov. 30, 1951.

Hearing Denied Jan. 3, 1952.

F. H. Bowers, Roseville, Thomas F. Sargent, Auburn, for appellant.

Leland J. Propp, Auburn, Fontaine Johnson, Sacramento, for respondent.

VAN DYKE, Justice.

Jeanette Wellauer, also known as Jeanette Wellauer Kelly, died August 3, 1949, a resident of Placer County. She left a purported will dated May 2, 1947, which was offered for probate. Gregory J. Altenhofen and Eugene Altenhofen, brothers of decedent, contested the probate of the will on the grounds of mental incapacity, and undue influence, alleged to have been inserted by Roland J. Kelly. The case was tried to a jury which returned verdicts in favor of contestants upon both grounds. Motions for judgments notwithstanding the verdicts were granted by the trial court and the will admitted to probate. The contestants appeal.

Decedent's husband, Henry C. Wellauer, died in 1945 in Wisconsin. Decedent became acquainted with respondent Kelly and they came to California in January, 1946. Kelly returned to Wisconsin for a short time and then rejoined decedent, whereupon they moved to a ranch in Placer County where they resided until Decedent's death. They were never married, but lived together as husband and wife and held themselves out to friends and neighbors as being married. By the will she gave to respondent Kelly, whom she referred to as her husband, all her property save gifts to a sister, a niece, a son of Kelly, and two nephews. She made no bequests to either of contestants. Roughly, three-fourths of her estate of around $100,000 in value, most of which she derived from her predeceased husband, went to Kelly.

Three witnesses testified for appellants and their testimony can be summarized as follows: Doctor Barnes, physician and surgeon, had treated decedent at various times from June, 1946, to June, 1948, including treatments on April 8th and in June of 1947, approximately a month before and a month after the will was made. He said that she had degenerated mentally and physically during this period of time, was a chronic alcoholic and had regressed to the mental condition of childhood and was mentally incompetent. On April 8th, 1947, he found her suffering from hysterical paralysis of the left side induced by alcoholism. He said she was not of sound mind on that date but was petulant and childish. As to the month of June, he said she was very sick mentally and physically, and mentally incompetent, and he described her as being in the same condition in April; that her conversation during that period could be compared to that of an old person in dotage, that is, the childishness of old age or senility; he could not say what age of child he referred to, but she was childish; she did not have sufficient mentality to use the ordinary judgment of an adult person, could rarely go through with a good conversation, but would go off on tangents and could not be pinned down, and this was true when she was intoxicated and when she wasn't intoxicated; that she could not at any time carry on a completed conversation; that while a child can carry on a conversation it sometimes just prattles. When asked if he knew of times when she was not drinking he said he couldn't say because he didn't know. As an illustration of childish action he said she would promise him to keep off the liquor and as soon as his back was turned she was right back on it, which was about the control a child would have, although the general attitude of a chronic alcoholic. She evidenced lack of full possession of her faculties because she was unreasonable. She changed from a woman who had been almost immaculate in her person to slovenliness. Appellant Gregory Altenhofen stated that his sister had graduated from Marquette University as an honor student; that she had taught school and been a social service worker at times; that after coming to California she became indecisive and incoherent in her manner of expressing herself; that she had refused to go back to her father's funeral; that he had seen her looking dirty and unkempt when he saw her in a bar and she appeared 'a little bit woozy'; she rambled in her talk; she had lost a lot of weight. he saw her seldom. Gregory's wife, Mary Altenhofen, first saw deceased in January, 1946, when she visited at the witness' home. At that occasion she came out of the car with two bottles of whisky on one arm and a large 'panda bear' on the other, with which she constantly played; she went to sleep with it on the davenport; she would turn on the radio at any time of day or night; when her brother came in she would try to get her bearings; she would reach into the cupboard and take the condiment containers which she would arrange in a straight line down the table like a little child. She was there two and a half weeks without taking a bath or changing her clothes, which was not her normal mode of living; she had been athletic and cleanly. In April of 1947, while drunk, she was rambling and incoherent and expressed her sorrow that when her husband was buried she had had to have his legs cut off to get him in the casket; during that same month she invited the witness to a New Year's dinner; she would get terribly drunk, was thin and haggard and wouldn't eat; in April of 1947 she was insane; when the witness saw her in June of 1947 she was drunk and could not hold a normal conversation; in December of 1948, one and a half years after she made her will, she was drunk in a bar in Auburn and was found by the witness in a dirty dark room on a dirty bed dressed in dirty old slacks with a rag around her head, wearing an old sweater and so drunk she couldn't be waked up. The witness never saw her when she was sober from the time she came to California until the date of her death; her signature on the will did not look normal. The witness gave it as her opinion that the...