Wynne's Estate, In re

• Decision Date: 13 January 1966
• Citation: 239 Cal.App.2d 369,48 Cal.Rptr. 656
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Jane R. WYNNE, Deceased. KERN COUNTY HEART ASSOCIATION et al., Contestants and Appellants, v. Bennett SIEMON et al., Proponents and Respondents. Civ. 531.

Page 656

48 Cal.Rptr. 656

239 Cal.App.2d 369

In the Matter of the ESTATE of Jane R. WYNNE, Deceased.

KERN COUNTY HEART ASSOCIATION et al., Contestants and Appellants, v. Bennett SIEMON et al., Proponents and Respondents.

Civ. 531.

District Court of Appeal, Fifth District, California.

Jan. 13, 1966.

Rehearing Denied Feb. 9, 1966.

Hearing Denied March 9, 1966.

DiGiorgio, Davis & Nairn and Thomas R. Davis, Bakersfield, for appellants.

Mack, Bianco & Means and Henry C. Mack, Sr., Bakersfield, for respondents.

CONLEY, Presiding Justice.

When Jane R. Wynne died at an advanced age, she left a will and two codicils, which were admitted to probate. The will was dated October 2, 1959. It recited that she was a widow; that she and her husband had never had children, and that her sole heirs were four nieces, who lived outside of California, and one nephew, Richard Ryan Reed of Los Angeles. She bequeathed the sum of $25,000 to the Trinity Episcopal Church at Santa Barbara, $10,000 to the Kern County Chapter of The National Foundation, and $10,000 to the Kern County Heart Association, besides bequests to one of her physicians, Dr. A. E. Currier and to her attorney, Bennett Siemon of Bakersfield. Her nephew, Richard Ryan Reed, was named as the residuary legatee of the balance of her estate and she nominated Mr. Siemon as executor.

In a codicil, dated September 27, 1961, Mrs. Wynne reduced the bequests to the Trinity Episcopal Church to the sum of $20,000. On the 30th day of March, 1962, Mrs. Wynne executed another codicil in which she revoked all three previous bequests to charitable institutions as mentioned above, bequeathed to her current physician, Dr. Robert C. Seibly of Bakersfield, the sum of $10,000, and ratified and confirmed all of the other provisions of her will.

The sole question determined by the court, acting without a jury, was whether or not Mrs. Wynne had testamentary capacity at the time of executing the codicil of March 30, 1962. Under date of May 3, 1963, the Kern County Heart Association, The National Foundation, and the Trinity Episcopal Church at Santa Barbara filed a petition for the revocation of the last codicil to the will, reciting that Mrs. Wynne died on the 23rd day of November, 1962, in Kern County, that the will and the two codicils had been admitted to probate, and that letters testamentary were issued to Bennett Siemon, the qualified and acting executor of the estate. The petition further stated that each of the petitioners was a non-profit corporation authorized to do business in the State of California, and that each of them was an interested person within the meaning of section 380 of the Probate Code. It was then said that 'probate of the codicil dated the 30th day of March, 1962, should be revoked * * *,' and 'that the decedent at the time of the alleged execution of said Codicil was not of sound and disposing mind.' After the completion of the hearing in the matter, the court found that it is true that at the time of executing the codicil the decedent was of sound and disposing mind, and concluded that at that time Mrs. Wynne was mentally competent to make the codicil and that it is '* * * a valid codicil to her will and that probate thereof should not be revoked.'

Upon analysis, it appears that the underlying question to be determined on appeal is whether or not the trial judge was conclusively forced to accept the hypothetical opinion of a medical specialist, Dr. George N. Thompson of Los Angeles, who was called to the stand by the contestants, as against the evidence of the two subscribing witnesses, decedent's local doctor and acquaintances of many years standing. Dr. Thompson stood alone in the record in his opinion that Mrs. Wynne could not have been in a mental condition to execute legally the codicil of March 30, 1962. We are of the opinion that there is no principle of law which would compel the trial judge to reject the testimony of the subscribing witnesses, and Mrs. Wynne's local doctor, and acquaintances, and to accept at its full face value the opinion of a specialist who never saw the decedent, and whose testimony was given in response to a hypothetical question. An interesting comment on the type of evidence given by Dr. Thompson is made in In re Estate of Dolbeer, 149 Cal. 227, at page 243, 86 P. 695, at page 702:

'The witnesses were skilled alienists, it may be conceded; but the evidence thus adduced of one who has never seen the person, and who bases his opinion upon the facts given in a hypothetical question, is evidence the weakest and most unsatisfactory. Such questions themselves are always framed with great particularity to meet the views of the side which presents the expert. They always eliminate from consideration the countervailing evidence, which may be of a thousand-fold more strength than the evidence upon which the question is based. They are astutely drawn, and drawn for a purpose, and that purpose never is the presentation of all the evidence. It is never to present the fair and accurate view, but the purpose always is to frame a question such that the answer will announce a predetermined result. This kind of expert testimony, given under such circumstances, even the testimony of able and disinterested witnesses, as no doubt these were, is in the eye of the law of steadily decreasing value.'

It should be remembered that subdivision 10 of section 1870 of the Code of Civil Procedure specifically provides that evidence may be given by persons in both of the following specific classifications: 'The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given.' It is not a legal rule that the hypothetical opinion of an alienist takes precedence over the opinions of subscribing witnesses to a will or the opinions of intimate acquaintances.

The province of a reviewing court in a will contest is, of course, the same as in other civil cases--this is, if it finds that there is substantial evidence to support the trial court's findings, it must affirm (In re Estate of Morgan, 225 Cal.App.2d 156, 167, 37 Cal.Rptr. 160; In re Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689). In reviewing the findings, it is our duty to accept all evidence which is favorable to the respondent, and 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). Obviously, whether the testatrix was of sound and disposing mind and memory at the time of executing the codicil was the basic question to be determined; if she had sufficient mental capacity to understand the nature of the act she was doing, the nature and condition of her property and her relation with the persons who had claims upon her bounty and who would be affected by the provisions of the instrument, she would be legally competent to make an effective codicil (In re Estate of Lingenfelter, 38 Cal.2d 571, 582, 241 P.2d 990; In re Estate of Fritschi, 60 Cal.2d 367, 372, 33 Cal.Rptr. 264, 384 P.2d 656).

It is clear that a testator is presumed to be sane, and the burden of proof, to the contrary, is always upon the contestant. (In re Estate of Fritschi, supra, 60 Cal.2d 367, 372, 33 Cal.Rptr. 264, 384 P.2d 656). As a matter of fact, this presumption is itself indirect evidence (In re Estate of Wright, 7 Cal.2d 348, 350, 60 P.2d 434). As is said in In re Estate of Arnold, 16 Cal.2d 573, 585-586, 107 P.2d 25, 32:

'It is well settled that mere proof of mental derangement or even or insanity in a medical sense is not sufficient to invalidate a will, but the contestant is required to go further and prove either such a complete mental degeneration as denotes utter incapacity to know and understand those things which the law prescribes as essential to the making of a will, or the existence of a specific insane delusion which affected the making of the will in question. (In re) Estate of Shay, 196 Cal. 355, 359, 237 P. 1079; (In re) Estate of Russell, 189 Cal. 759, 769, 210 P. 249.

"In considering the evidence it is important, preliminarily to observe that it is not every form of insanity, not every mental departure from the normal, which destroys an otherwise valid testamentary act. The rule of law is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld.' (In re) Estate of Chevallier, 159 Cal. 161, 168, 113 P. 130, 133.'

The fact that Bennett Siemon had been appointed guardian of the estate of Mrs. Wynne during her lifetime did not require a finding of testamentary incapacity, or even shift the burden of proof from the contestant. (In re Estate of Nelson, 227 Cal.App.2d 42, 54, 38 Cal.Rptr. 459; In re Estate of Jamison, 41 Cal.2d 1, 13, 256 P.2d 984; In re Estate of...