Opinion
Hearing Granted April 12, 1961.
Judgment Reversed by Stipulation June 13, 1961.
Dryden, Harrington, Horgan & Swartz, Lowell L. Dryden, Jacob Swartz and V. G. Foster, Los Angeles, for appellants Braille Institute of America, Inc., and Childrens Hospital Soc. of Los Angeles.
Martin & Camusi, Los Angeles, for cross-appellants Patricia C. M. Mardis and Arthur E. Mortimer.
SHINN, Presiding Justice.
We have for consideration an appeal and a cross-appeal from a judgment notwithstanding verdicts in a will contest in the estate of Julia B. Bullinger, who died February 5, 1958 at the age of 80 years.
October 2, 1947, soon after the death of her husband, Mrs. Bullinger executed a witnessed will which left her estate in trust for the benefit of Ruth Irving, her only child, during her lifetime, with remainder over to Braille Institute of America and Childrens Hospital Society of Los Angeles. In May 1950, she executed a witnessed codicil by which she forgave an indebtedness of Ruth in the sum of $65,000 and republished the former will. March 27, 1952, she executed a holographic will which left her entire estate to Ruth. October 2, 1953, she executed a witnessed will which named Arthur E. Mortimer and Ruth as executors, and republished the holographic will.
Title Insurance and Trust Company named as executor offered the 1947 will and the codicil for probate. Objections were filed by Arthur E. Mortimer, as executor, and by Patricia C. M. Mardis, as conservator of the estate of Ruth Irving, to probate of the 1947 will and the codicil. Arthur E. Mortimer offered the 1952 and 1953 wills for probate. Braille Institute and Childrens Hospital filed objections to probate of the 1952 and 1953 wills. Answers to the objections were duly filed. Ruth having died prior to the trial, Patricia Mardis was substituted as executrix of the will of Ruth instead of as conservator of her estate. Ruth left a will naming Patricia Mardis as sole beneficiary, except for a bequest of $15,000 to Marcia Manon Frothingham, provided the estate of Mrs. Bullinger should come into the estate of Ruth.
The issues respecting the 1947 will and codicil were tried by the court. The issues respecting the 1952 and 1953 wills were tried to a jury. All grounds of contest of the latter wills other than the grounds of testamentary incapacity and undue influence were dismissed. The jury returned findings that Mrs. Bullinger lacked testamentary capacity when she executed the wills and that she was in each case acting under undue influence. By stipulation the findings were deemed special verdicts. The 1947 will and codicil were ordered admitted to probate.
Arthur E. Mortimer and Patricia Mardis, in their representative capacities moved for a judgment notwithstanding verdicts, which would admit to probate the 1952 and 1953 wills and deny probate to the 1947 will and codicil. By their notice they reserved the right to apply for a new trial in the event their motion for judgment notwithstanding the verdicts should be denied. The motion was granted. The court made findings that the 1947 will and codicil were duly executed; Mrs. Bullinger possessed testamentary capacity and was not acting under undue influence in the execution of the 1952 will; she lacked testamentary capacity and was acting under undue influence in executing the 1953 will; the 1947 will and codicil were revoked by the 1952 will; if it should be finally determined that the court erred in granting judgment notwithstanding the verdicts the 1947 will and codicil should be admitted to probate as the last will of Mrs. Bullinger. Judgment was entered in accordance with the findings.
Braille Institute, Childrens Hospital and Title Insurance and Trust Company appealed from the judgment and noticed an appeal from the order granting the motion for judgment. Patricia Mardis and Arthur E. Mortimer appealed from all provisions of the judgment, other than the one which admits the 1952 will to probate. They do NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
On the day following the execution of the will Mrs. Bullinger wrote a letter, of which the following is a copy: 'March 28, 1952 Dear Ruth: I have tried to make my own will the way I want it. Keep it--don't let any one have it. I cant trust any body. I don't know why things are the way they are. Cant you help me get rid of that that Canaday woman. I am so upset. I am afraid about papers I have Signed. I dont know what. You know I want every every thing, to be all right for Admittedly, both the will and the letter were written by Mrs. Bullinger. If she composed them they constituted unimpeachable evidence that she possessed testamentary capacity. In order to defeat the will it was necessary for contestants to prove that it was not the free and voluntary act of Mrs. Bullinger. There was no evidence that anyone was with Mrs. Bullinger when she wrote the will or the letter, and no evidence that the matter of making a new will was ever mentioned by her to anyone or suggested to her. The circumstances in which the will and letter were written were not in evidence.
David Black, a leading examiner of questioned documents, an associate of Clark Sellers, examined the will and the letter and gave his opinion that they were written with the same type of pencil; the two writings had been folded together. The signature on the will compared favorably with the best signatures of Mrs. Bullinger in 1948, 1949 and 1950, was equally as good from the standpoint of fluidity, smoothness and rapidity, as any, and better than some. The will and the letter, in his opinion, were written in single settings and without long pauses.
Contestants undertook to prove that Mrs. Bullinger did not have the mental capacity to compose any will; someone else must have composed what she wrote. They say that in any event she did not understand the meaning of what she wrote to be that she was leaving her estate to her daughter.
Proponents contend that although Mrs. Bullinger suffered from a marked impairment of her mental faculties, it was conclusively proved that she had a clear understanding of the nature and effect of her will, the fact that Ruth was the only person who deserved to be remembered in the will and a knowledge of the properties that would pass under the will. They contend that the expert witnesses of contestants formed their opinions without taking into consideration, or even being aware of the terms of the will or the letter, and their opinions were therefore of no value as evidence; their own experts gave the only competent testimony, and the entire evidence of contestants was but an attempt to overcome proven facts by the opinions of expert and lay witnesses that the facts could not exist.
We are in agreement with the views of the trial court that contestants failed to produce substantial evidence that Mrs. Bullinger lacked testamentary capacity or that she was acting under undue influence, and we conclude that the judgment must be affirmed.
It is elementary that less mentality is required to enable one to possess testamentary capacity than is required for the negotiation of contracts or the management of one's property or business. Estate of Sexton, 199 Cal. 759, 251 P. 778; Estate of Holloway, 195 Cal. 711, 235 P. 1012; Estate of Simmons, 65 Cal.App.2d 533, 151 P.2d 8. And since the question is whether a testator was competent when he made a particular will, it is evident that less mental capacity is required to understand a simple will than a complex one; less understanding of the relations toward and deserts of a single child than the deserts of numerous relatives, friends and other prospective beneficiaries; less understanding of the extent and nature of property that is being left to an only child than would be required to make a fair and reasonable apportionment and division of a complex estate among many persons deserving of remembrance. These truisms were explicitly stated by the court in Estate of Ivey, 94 Cal.App. 576, 271 P. 559. The primary question was: Did Mrs. Bullinger, when she wrote the will, understand the meaning and the effect of what she wrote? Nothing could have been simpler than the will that left everything to an only child. For Mrs. Bullinger to have been ignorant of the fact that she was leaving her estate to her daughter, she would have had to be utterly devoid of understanding of her surroundings and even of her own acts.
Throughout the trial contestants carefully avoided any mention of the wording of the will or the letter. They do the same in their briefs. Not only do they fail to offer an answer to the question--'how could Mrs. Bullinger have written what she wrote without understanding what it meant?', but they do not even recognize that it was the most important question in the case. They disregard the evidence, provided by the will and the letter, which proved that Mrs. Bullinger did think for herself, and they rely upon abstract opinions and inferences to prove that she could not have done what she actually did. It will be developed that the opinions of contestants' expert witnesses were based upon false assumptions, through the concealment of facts from them which, if known, could not reasonably have failed to alter their opinions respecting Mrs. Bullinger's testamentary capacity.
Three qualified medical experts, two of whom were psychiatrists, expressed opinions that Mrs. Bullinger did not possess testamentary capacity on March 27, 1952. Three equally qualified psychiatrists gave it as their opinions that she did possess testamentary capacity at that time. Intimate acquaintances expressed opinions that Mrs. Bullinger was of unsound mind both before and after March 1952. Other lay witnesses testified to occurrences both before and after the execution of the will when Mrs. Bullinger's conversation and actions clearly indicated that she was of sound and disposing mind.
In January 1954, Dr. Wyers was engaged by one of contestants' present attorneys to make an examination of Mrs. Bullinger, who was then in a hospital. The purpose was to enable the doctor to form an opinion as to Mrs. Bullinger's testamentary capacity, in preparation for expected litigation. He found her confused, not oriented as to time, place or person, forgetful, enfeebled and childish. She thought she was in her own home and stated that her husband would be back in a few minutes. She knew she owned her house and other property; that her daughter asks her for money and when asked whether she spent it foolishly she replied 'Yes, sometimes, that is what I am afraid of.' Asked whether her daughter drank, she replied 'She used to.' Dr. Wyers' report stated 'at this point the patient showed some irritation'; nevertheless the interrogation was continued. The witness was questioned by contestants and answered as follows: 'Q. Now, Doctor, assuming that on March 27, 1952, that there was a will in existence which was in the handwriting of Mrs. Bullinger, and I just want to go that far at this moment; insofar as testamentary capacity is concerned, do you have an opinion predicated upon your examination as to whether or not on March 27, 1952, she possessed such knowledge to know the nature of the act to be performed, the nature and extent of her property, and the natural subjects of her bounty? A. Yes, I have an opinion. Q. What is your opinion? A. That she did not have.'
Dr. Von Hagen examined Mrs. Bullinger in 1949 at the request of her physician; she had fallen and broken her arm, had had dizzy spells, she was confused, disoriented and forgetful. She was driving her automobile in that period. He examined her again for about 15 minutes in January 1954 in the hospital in anticipation of litigation; she gave her daughter's name, her address and the name of her doctor; she gave evidence of severe loss of memory; she gave no relevant reply when asked about her property. His diagnosis was senility, generally associated with arteriosclerosis; she was of unsound mind in October 1953 and for three years prior to January 11, 1954, and even as far back as 1949 or 1948; she could have understood Dr. Green first saw Mrs. Bullinger in September 1952. He was of the opinion that she was capable of writing in a coordinate fashion during 1952, 1953 and 1954, but did not have the ability of composition, although she might be aware of writing her own name. She was negative, uncooperative and stubborn. In January 1954, she developed inflammation of the lungs and was hospitalized for ten days and attended by Dr. Green. He was of the opinion that she had probably been incompetent for a year or two before he first saw her. In 1952 she did not have the ability to be aware of the nature of her property or understand the nature of a will. He never asked her about her property. He believed that at times she could have remembered her Bank of America and her market properties. She did know her daughter. Her mental condition was better at some times than at others. He had not been shown the 1952 will and was not questioned concerning it, or the letter.
Another psychiatrist, Dr. Edwin E. McNiel, was a subscribing witness to the 1953 will. He was called by proponents to give evidence that Mrs. Bullinger had testamentary capacity when she executed that will. He had come into the case in the following manner. Mr. Mortimer introduced Ruth to attorney Burch whom Ruth employed as a consultant and agreed to pay and did pay $6,000, of which he paid Mortimer one-third. Burch introduced Ruth to Dr. McNiel. Ruth was informed that Dr. McNiel and Mr. Dryden, one of contestants' attorneys, were married to sisters, but Ruth had no objection to his making an examination of her mother with respect to her mental condition. He examined Mrs. Bullinger in lengthy conferences on four separate occasions in July and September 1953. He reported to Burch that there were times when it was impossible to carry on a lucid conversation with Mrs. Bullinger. He became Mrs. Bullinger's guardian August 3, 1954. The evening before he testified, he discussed the testimony he was to give with Mr. Dryden. He testified that in his opinion there were times when Mrs. Bullinger had testamentary capacity to make a simple will, 'When you could get her at the right time, she would respond to your questioning'; she was clear enough to make a will. Upon cross-examination he testified that in his opinion Mrs. Bullinger was not of sound and disposing mind October 2, 1953. He did not explain what he meant by 'disposing mind,' nor disclose any knowledge of the mental capacity that is required to make a valid will. See Estate of Sexton, supra, 199 Cal. 759, 770, 251 P. 778. He had never seen the 1952 will.
In weighing the opinions of contestants' experts in order to determine whether they constituted substantial evidence of lack of testamentary capacity, the trial judge could have believed, and presumably did believe, that if the four doctors had been shown the will, and especially the words, 'I want this to be my will,' they would not have expressed opinions that Mrs. Bullinger did not know what a will was, and that she was writing one, and that if they had read 'I will everything I have to Ruth, my daughter,' they would not have expressed opinions that she did not know that Ruth was her daughter and that she was leaving her estate to Ruth because she was her daughter. If they had read the letter they Expert opinions which are based upon a materially false hypothesis are not entitled to consideration. A false hypothesis exists when facts essential to the formation of a sound and reasonable opinion are not taken into consideration or when the opinions are essentially and necessarily based upon relevant but nonexistent facts. Gamberg v Industrial Acc. Comm., 138 Cal.App. 424, 32 P.2d 413; Mark v. Industrial Acc. Comm., 29 Cal.App.2d 495, 84 P.2d 1071; Blankenfeld v. Industrial Acc. Comm., 36 Cal.App.2d 690, 98 P.2d 584; Estate of Purcell, 164 Cal 300, 128 P. 932; Hendricks v. Industrial Acc. Comm., 25 Cal.App.2d 534, 78 P.2d 189; Estate of Powers, 81 Cal.App.2d 480, 184 P.2d 319.
Trial judges are frequently required to grant motions for judgment notwithstanding verdicts in will contests when the jury has found that the testator lacked testamentary capacity. The sufficiency of the evidence respecting that issue must be tested by rules of evidence that are familiar to judges but difficult to elucidate to the jury by means of instructions. In the present case the jury would naturally have attached much weight to the expert opinions that Mrs. Bullinger had no lucid intervals. The testimony of contestants' experts respecting their examinations of Mrs. Bullinger and her reactions to their questioning was competent evidence, but their conclusions that she could have had no lucid intervals could not stand against the positive evidence, consisting of the will itself, that she knew what she was doing when she wrote it. It was the duty of the court, upon motion for judgment notwithstanding the verdicts or for a new trial, to weigh the opinion evidence under principles that could not be adequately explained to the jury.
The opinions of the proponents' experts were based upon hypothetical questions which incorporated the will and the letter to Ruth. Their conclusions were that Mrs. Bullinger fully understood that by means of the will she was leaving her property to her daughter. The proven fact that the writings were those of Mrs. Bullinger, the absence of any evidence that she was assisted in composing them, and the nature of the writings themselves, proved that they were written during a lucid interval. The learned trial judge correctly held that as against those established facts the opinions of the experts that Mrs. Bullinger could not have lucid intervals did not possess evidentiary value.
We turn to the testimony of the lay witnesses for contestants. Mrs. Canaday went to work for Mrs. Bullinger in 1947. She was selected as a nurse for Mrs. Bullinger by one of contestants' present attorneys. She was employed continuously until May 1952, but was off Saturdays and Sundays. She witnessed the 1950 codicil. She thought Mrs. Bullinger was not sane after the latter part of 1950. For six months prior to May 1952, Mrs. Bullinger's memory was poor. Many times Mrs. Bullinger told her she had made a will, but she could not recall whether this statement was made in the last six months of her employment. Until the latter part of 1950 Mrs. Bullinger would stop and visit her property at the Bank of America and her market property on Chevy Chase. She (Mrs. Canaday) regularly gave Mrs. Bullinger one or two tablets of seconal or nembutal daily during all the times she was with her; this was for sleeping purposes. Mrs. Bullinger always recognized Mr. Knox, called her (Mrs. Canaday) Dorothy, called the housekeeper (Mrs. Dagley) Amy. Mrs. Bullinger always understood what she (Mrs. Canaday) was saying to her. Mrs. Bullinger went up and down stairs at all times and listened to the radio. Mrs. Dagley was Mrs. Bullinger's housekeeper from July 1948 until February 1952. From 1950 on Mrs. Bullinger was feeble; she would watch television but appeared not to understand it. She could not carry on an intelligent conversation; she would play with the contents of her pocketbook to the annoyance of others who were watching television.
Mr. Knox testified that he managed Mrs. Bullinger's and Ruth's business affairs. Mrs. Bullinger's physical condition was good, but she was mentally weak. He was appointed as her guardian in 1951. In 1952 she could not carry on a coherent conversation or remember things from day to day. She complained that people were spying on her.
It would serve no purpose to set forth the testimony of the lay witnesses for proponents which, as we have stated, was descriptive of occurrences in which the conversation and conduct of Mrs. Bullinger indicated that she understood what was being said to her and what was going on around her.
It is unnecessary to determine whether the testimony of contestants' lay witnesses, standing alone, would have constituted substantial evidence that Mrs. Bullinger would not have fully understood her will. Given the greatest credence and weight, it would have purported to prove only that her memory was poor, her conversation disconnected, her powers of concentration limited and at times her actions peculiar. This was the basis of the opinions that she was not sane and was of unsound mind. None of these witnesses was permitted to take into consideration the will or the letter. It is inconceivable to us that any of the witnesses, if shown the will and the letter, would have attempted to deny that Mrs. Bullinger understood what she had written.
Mrs. Bullinger's principal concern had always been to make adequate provision for Ruth. There was no one else who could claim a right to be remembered. In order to effect her purpose to leave her entire estate to Ruth it was not necessary that Mrs. Bullinger have in mind the particular properties she owned which were, in addition to her home, the Bank of America building and a market building which had been owned for many years. There was no occasion upon which she was called upon to display knowledge of her several properties. The opinions that Mrs. Bullinger was incapable of understanding what a will was or realizing her relations to her daughter and the daughter's right to be remembered, were so clearly in error as to be unworthy of credence. The opinions of the doctors that she would not have been able to recall the general nature of her estate, based as they were on an assumption of her complete lack of understanding, were no better than the other opinions they had expressed. It is clear from the evidence that the experts made no effort to ascertain whether Mrs. Bullinger could have informed them as to the general nature of her estate if the circumstances made it important for her to remember or to discuss what she owned.
The next contention of contestants is that there was substantial evidence that Mrs. Bullinger wrote the will while under the influence of her daughter or some one else. Ruth testified by deposition that she had no knowledge that her mother was There was no evidence that anyone discussed with Mrs. Bullinger the execution of the 1952 will. Contestants say, however, that there was circumstantial evidence of the use of undue influence. They point to the circumstances in which the 1953 will was executed, which both the jury and the court found was procured by the use of undue influence, and they argue that it could be inferred that the same or similar influence was used in 1952. In May 1952 Mrs. Burnett succeeded Mrs. Canaday as nurse and remained with Mrs. Bullinger until the end of 1953. Contestants say the will may not have been written in March, but in May or later, and antedated, after Mrs. Burnett came, and that she may have assisted in its composition and execution. They argue that Ruth was probably dissatisfied with the 1947 will and anxious to have her mother write another one, and they say that Mrs. Bullinger did not want Ruth to have full control of the property for fear she would dissipate it. They insist that someone must have aided Mrs. Bullinger because she did not have the ability to compose the will and the letter. They point to the admitted fact that Ruth had had a serious drinking problem which created many difficulties for herself and her mother, and that this was the reason for the creation of a trust in her favor by the 1947 will. From these facts they argue that Mrs. Bullinger would have been opposed to leaving her estate outright to Ruth for fear it would be dissipated. All this means only that it was unreasonable to believe that Mrs. Bullinger would compose and execute the will which she did compose and execute. There was no evidence, only vague suspicion, that she was subjected to undue influence. This is not enough.
In order to avoid a will upon the ground of undue influence the contestant must show that coercive pressure sufficient to destroy the free agency of the testator was brought to bear upon the execution of the will. It is not enough to show that the circumstances were consistent with the use of undue influence; they must be inconsistent with voluntary action on the part of the testator. Estate of Robbins, 172 Cal.App.2d 549, 554, 342 P.2d 933, and cases cited.
In March 1951, Mrs. Bullinger was declared incompetent within the meaning of section 1460 of the Probate Code; Mr. Knox was appointed guardian of her person, and Title Insurance and Trust Company guardian of her estate. Contestants contend that the judgment which established the existence of conditions justifying the appointment of a guardian, namely, inability, unassisted, to care for herself and her property, was sufficient of itself, to prove that Mrs. Bullinger lacked testamentary capacity at that time, and that since her condition did not improve, the effect of the judgment was the same in March 1952.
The argument finds support in Estate of Wolf, 174 Cal.App.2d 144, 344 P.2d 37, which relies upon Estate of Krause, 71 Cal.App.2d 719, 163 P.2d 505, decided by the same court, which in turn was based upon Estate of Loveland, 162 Cal. 595, 123 P. 801 and Estate of Ehle, 115 Cal.App. 656, 2 P.2d 398. Loveland does not hold that appointment of a guardian is prima facie evidence of testamentary incapacity. Ehle does so hold, but only upon the authority of Hellman Commercial Trust & Savings Bank v. Alden, 206 Cal. 592, 275 P. 794. But the court in Estate of Powers, 81 Cal.App.2d 480, 184 P.2d 319, clarified the law. The statement in Hellman was shown to be dictum, and it was held upon The trial was a protracted one. The transcript of the evidence is voluminous. We have given what we consider to be a fair and adequate summary of the evidence.
The case as we have outlined it presents the simple question whether the existence of a fact which is established by competent evidence can be controverted, in the legal sense, by opinion evidence that the fact did not exist. Our answer, as previously indicated, must be that opinion evidence cannot cast a doubt upon the existence of the fact and must be rejected as evidence. This truism has been consistently applied in cases of will contests in which it was proved, as it was proved in the present case, that a testatrix of her own volition dictated or wrote a will which bore upon its face convincing evidence of its meaning and effect. In Cartright v. Cartright, 1 Eccl.Rep. 47, decided in 1793, quoted in Wisner v Chandler, 95 Kan. 36, 147 P. 849, at page 857, the court said: 'Now, I think the strongest and best proof that can arise as to a lucid interval is that which arises from the act itself. That I look upon as the thing to be first examined, and, if it can be proved and established that it is a rational act, rationally done, the whole case is proved. What can you do more to establish the act? Because, suppose you are able to show the party did that which appears to be a rational act, and it is his own act entirely, nothing is left to presumption in order to prove a lucid interval.' It was well said by the Supreme Court of Michigan, in Spratt v. Spratt, 76 Mich. 384, 43 N.W. 627, 629: 'Now when, in the absence of fraud or undue influence, it is shown that the testator either wrote or dictated the will produced, the fact is established that he was capable, mentally and physically, of doing whatever the instrument shows was done; and the only question is, does the instrument on its face indicate that it is the emanation of an unsound mind, when applied to the facts and circumstances upon which, and under which, it was intended to operate, namely, the estate disposed of, and the manner of disposition.' The rule was stated in Hannant v. Penstone, 255 Ill. 274, 99 N.E. 612, 614, 615, as follows: 'The authorities are well-nigh of one view that a holographic will which is rational upon its face and in accord with the existing facts which surrounded the testator at the time of its execution establishes, within itself, testamentary capacity. (Citations.)' Under this rule opinion evidence tending to prove testamentary incapacity carries no weight whatever.
It is not questioned by contestants that if Mrs. Bullinger had the ability to compose the will she had the ability to understand it. From beginning to end, both the letter and the will furnish the strongest evidence that it was Mrs. Bullinger, and no one else, who was speaking through the written words. Designing persons could have implanted in her mind their own thoughts and beliefs, but not the feelings of discontent and rebellion against her surroundings, or the instinctive urge to turn to her daughter in her distress or the desire to do everything in her power to provide for her daughter's welfare, which found simple but eloquent expression in the letter.
We are firmly of the opinion that there was no reasonable basis for the verdicts in favor of the contestants upon the issues of testamentary capacity and undue influence, and that the judgment must be affirmed. The purported appeal from the order granting the motion for judgment notwithstanding the verdicts, being non-appealable, is dismissed. The judgment is affirmed.
VALLEE and FORD, JJ., concur.