Opinion
9-22-1953
In re WELCH'S ESTATE. * FAIRCHILD v. ADAMS. Civ. 19554.
Robert A. Jarrott, Los Angeles, and LeRoy Thomas, South Gate, for appellant. Austin, Austin, Jones & Chaffee, Compton, for respondent.
In re WELCH'S ESTATE. *
FAIRCHILD
v.
ADAMS.
Sept. 22, 1953.
Hearing Granted Nov. 19, 1953.
Robert A. Jarrott, Los Angeles, and LeRoy Thomas, South Gate, for appellant.
Austin, Austin, Jones & Chaffee, Compton, for respondent.
DRAPEAU, Justice.
Myrtle F. Welch died December 22, 1951. Her husband died before her, January 21, 1947. She had no children. Her heirs at law and next of kin were two brothers and a sister.
Arthur A. Fairchild, brother, presented her will and codicil for probate. The instrument was entirely in Myrtle's handwriting and on one sheet of paper. The will was dated February 27, 1947; the codicil was dated December 26, 1949. Myrtle was 68 years of age when she made the will; 70 when she made the codicil, and 72 when she died.
By the will Myrtle left all her property to Arthur. By the codicil she named him to be executor, without bond. Her property was of the approximate value of $18,000.
Geraldine F. Adams, sister, contested the will and codicil. The issue was submitted to a jury. The jury found for Geraldine and against Arthur, on the ground of undue influence. Motions for judgment notwithstanding the verdict and for a new trial were denied by the court.
Arthur appeals from the judgment denying probate of the purported will.
When Myrtle's husband died, she asked Geraldine, her sister, to arrange for his funeral. This Geraldine did. Myrtle told Geraldine not to send word about the funeral to Arthur.
The sisters agreed to live together in Geraldine's house in Long Beach. Myrtle listed her house in Compton for sale with a real-estate broker.
While these friendly relations between the sisters continued, Myrtle made her handwritten will, leaving to Geraldine all her property except $6,500, which was to be held by Geraldine as trustee for Arthur. At the same time Geraldine made her handwritten will, giving Myrtle the use of Geraldine's house (not exclusively) for life, with the residue of Geraldine's estate to go to one of her sons. These wills were dated January 28, 1947.
While the two sisters were packing Myrtle's things to move to Geraldine's house, Arthur appeared. He said on the trial that this was in response to a letter from Myrtle, asking him to come. But he did not produce the letter. Geraldine testified that she saw the letter before it was mailed, and that it asked Arthur to come and get his things out of the garage.
Anyhow, when Arthur came the big fight began. Geraldine testified that the first thing Arthur said was, 'Now, Fred is gone. You will have to change your will. You will me everything you have and I will will you everything I have.'
Then Arthur pleaded with Myrtle to stay where she was and to make a home for him. Geraldine had a tantrum. Myrtle and Arthur went for a ride in his car, to talk things over.
When they got back, Arthur told Geraldine, 'take your things out of here. I am going to stay with Myrtle.'
Myrtle beckoned Geraldine out into the yard. Myrtle said, 'I have stood all I can stand of fighting. You will just have to do as he says. You know he is so domineering, you will just have to do as he says.'
Geraldine said, 'I thought you asked me to stay here and protect you like Fred did?'
Myrtle said, 'I tell you I will stay here until he gets his things out of the garage, then I will ease him out without fighting. You know it takes patience with people like him. I will figure out a way to ease him out. So you go on and I will keep in touch with you, and let you know what to do next.'
So Arthur came to live with Myrtle in Myrtle's house. He cancelled the real estate listing, and lived with his sister until she died.
And so, within a few weeks after Arthur moved in, Myrtle made the will presented for probate. And, later, she made the codicil presented for probate. Arthur was present when both the will and the codicil were made. No one else was present but Myrtle and Arthur.
Soon after Arthur came to live with Myrtle he made and gave to her a codicil to his will, leaving her $7,000. When she made her will to him he made his will, leaving her $25,000. Contestant argues that Arthur's property, however, consisted mainly of mining claims of doubtful value.
Contestant's theory of the case was that Arthur forced his way into Myrtle's home, subjecting her to his will, even though she had agreed to live with her sister; that within a few weeks he again substituted his will for hers, and dictated the testamentary disposition of her property to him; that he dictated the codicil in the same way; that at all times until she died he kept her under subjection in her home, and kept her friends and relatives away from her; and, finally, that he heartlessly and shamefully neglected her on her death bed.
It is in testimony that about two weeks before Myrtle died Arthur went to a mortician and arranged for her body to be disposed of for $77, just a burial, no funeral; that the mortician told him he should call a doctor, who would thus be able to sign a death certificate; that Arthur did not call the doctor until just a few hours before Myrtle died; that the mortician found Myrtle's body, filthy and emaciated, in a filthy bed; that when the relatives heard of Myrtle's death, they arranged a proper funeral for her at their own expense, which funeral Arthur did not attend.
Proponent's theory was that Myrtle asked him to move into her house to protect her from Geraldine and the rest of the relatives; that Geraldine had already gotten Myrtle's car away from her; that he did not talk about wills at the time of his interview with Myrtle after her husband's death; that he did not take her for a ride before Geraldine was ordered out; that for the rest of her life he did protect his sister from the designs of her relatives; that it was at her direction that he did not call a doctor during her last illness, or send her to a hospital, or have nurses for her; and that the will and the codicil presented for probate were of her own free will and accord, without any influence upon her by him.
While perhaps such inferences as proponent contends for might have been drawn by the jury, the verdict was against him. And he may not prevail on appeal. For it is settled law that this Court is not empowered to weigh conflicting evidence. That is the function of the jury, and, on a motion for a new trial, of the trial judge.
The function of this Court is concluded when it determines from an examination of the record that there is substantial evidence upon which to rest the verdict of the jury, and that there was no error in law upon the trial of the case. In re Estate of Teel, 25 Cal.2d 520, 154 P.2d 384; In re Estate of Snowball, 157 Cal. 301, 107 P. 598; and see any number of cases to the like effect, digested in 45 West's California Digest, Wills, k386, p. 561.
The record in this case has been read with care. It shows that the evidence does support the verdict of the jury when the foregoing rules are applied, and that there was no error in law upon the trial.
Republication of the will by the codicil was but one of the circumstances in the whole case to be weighed by the court and by the jury, together with all the other facts and circumstances. Therefore, appellant's contention that, as a matter of law, the codicil freed the will from any possible taint of undue influence is without merit.
Asserted errors in the admission of evidence, in giving an erroneous instruction, in modifying certain instructions, and in refusing certain other instructions offered by proponent have been examined and considered. No error is apparent. Reading the instructions as a whole, the jury was fully and fairly advised of the law to be applied to the facts in the case.
Appellant lays particular stress upon the admission over his objection of evidence as to the condition of the body of decedent as testified to by the mortician. Without doubt this evidence was highly prejudicial to appellant's case. But it was competent to show the complete domination by Arthur over his sister, even when she was within hours of her death. Indeed, on the very day she died Arthur refused to permit his other brother even to see her. The mental and physical condition of a testator are facts to be considered on the issue of undue influence. In re Estate of Teel, supra.
The judgment is affirmed.
WHITE, P. J., and DORAN, J., concur. --------------- * Subsequent opinion 272 P.2d 512