Opinion
6-7-1956
Matter of the ESTATE of Edward M. KEENEY, Deceased. Helen FRAZIER, Doris Line and Blanche Stephens, Contestants-Respondents, v. Julia McMANN, Proponent-Appellant. Civ. 5302.
Matter of the ESTATE of Edward M. KEENEY, Deceased.
Helen FRAZIER, Doris Line and Blanche Stephens, Contestants-Respondents,
v.
Julia McMANN, Proponent-Appellant.
Prior opinion, 295 P.2d 479.
PER CURIAM.
Hearing denied.
CARTER, TRAYNOR and McCOMB, JJ., dissenting.
CARTER, Justice (dissenting).
I have today filed a dissenting opinion, Cal.Sup., 297 P.2d 633 from the order denying a hearing after decision by the District Court of Appeal in Estate of Bullock, 295 P.2d 954, which involves the same problem as is involved in the case at bar and I here adopt the discussion of this problem in my dissenting opinion in that case.
The factual situation in the two cases is, of the case at bar which I shall set forth of the case atbar which I shall set forth at length herein clearly support the determination of the jury and trial judge that the will here involved was procurred by the undue influence of the proponent. Those facts are as follows.
At the time of the decedent's death, he was approximately 75 years of age and was residing in Fresno. In 1946, at decedent's request, Mrs. McMann came to California and took care of him at his home during his wife's illness. In 1952, Mrs. Keeney died and shortly thereafter, Keeney suffered a coronary attack and was taken to the Veterans' Hospital in Fresno where he remained about four months. Upon his discharge in December, he returned to his home where Mrs. McMann who had moved to Fresno with her husband took care of his meals and personal needs. On January 14, 1953, one of his daughters filed a petition in the superior court seeking her appointment as his guardian. A hearing was had on January 21, 1953, and it was found that Keeney was competent and the petition was denied. On January 23, 1953, was denied. On January 23, 1953, of his estate to each daughter and his sister. That will was destroyed on February 21, 1953, and the present one executed on that day. The will was offered for probate by Julia McMann on January 20, 1954.
There was testimony by one Smith, a close friend of the decedent, that Keeney was hurt by the action taken by his daughter and that he did not want a guardian. Smith talked with Julia McMann about what Keeney should do about it and Julia asked Smith to recommend an attorney. The attorney recommended by Smith was Douglas May. Mrs. McMann saw Mr. May and arranged for him to call on Keeney at his residence. Keeney employed May to contest the application for appointment of a guardian. Mr. May testified that Keeney told him that he did not want his daughters to handle his property; that after the guardianship proceedings while May was taking him home, he said he wanted to leave his property to his sister, Julia, and that he was through with his children. May suggested that he think it over and that Keeney said he would. May further testified that he talked to Keeney on the telephone and Keeney stated he had made up his mind to will one-fourth of his estate to each daughter and his sister. May also testified that two or three days prior to February 21, his secretary informed him that Keeney wanted him to come to his home to rewrite his will; that he called and talked to Mrs. McMann who told him how Keeney wanted the will changed; that he drafted the changes and on the morning of February 21, 1953, Mrs. McMann called him and told him that Keeney had had a heart attack and that he went immediately to the house and in the presence of three witnesses, one of whom was the husband of the proponent, called Keeney's attention to the will; that Keeney stated it was exactly what he wanted and that he had changed his will because his sister had been good to him while his daughters had not. The will was signed by the testator and the subscribing witnesses. The testator was then taken to the hospital in a critical condition. The record shows that he did not recognize his daughters that evening. He remained in the hospital until May 4, 1953 when he was returned to his home where he remained until May 15, 1953 when he was again taken to the hospital where he remained until his death. From the time of the incompetency hearing, Mrs. McMann lived in her brother's home.
It should be noted that the District Court of Appeal, in commenting on a statement made by one of the daughters that her father, on December 22, 1952, had said he wanted his property evenly divided between the three of them and so had not made a will, said that 'this statement was made long before she filed a petition to be appointed his guardian and the evidence clearly indicates that the reasons Keeney made the changes in his will on February 21, 1953, were that he resented the attempt to declare him incompetent, that his daughters left him alone, and that his sister had taken care of his person and property.' In this connection, it should be noted that after the incompetency hearing on January 21, 1953, on January 23, 1953 the first will was executed leaving the property equally divided between his three daughters and Mrs. McMann. It was not until February 21, 1953, the day he went to the hospital in a critically ill condition that he executed the will leaving the major part of his property to his sister.
An examination of the record shows that the proponent sustained a confidential relationship to the testator; that she unduly profited by the will; and that she actually participated in procuring its execution. This evidence raised a presumption of undue influence, Estate of Pellegrini, 138 Cal.App.2d 143, 291 P.2d 558, which the jury, properly instructed, undoubtedly concluded was not overcome by any evidence to the contrary. The proponent testified that she destroyed the first will at the decedent's request and that, also at his request, she told Mr. May how to make out the new will. The jury as trier of the fact was free to disbelieve her testimony if it chose, which it obviously did inasmuch as it returned an affirmative answer to the interrogatory concerning undue influence on her part.
In the instant case, we have a motion for a directed verdict on the part of proponent denied, eleven members of the jury finding that undue influence was exercised by the proponent, a motion made by the proponent for a new trial denied, and then an appellate court reweighing the evidence to conclude that no undue influence was exerted by the proponent. The question of undue influence is one of fact to be determined by the trier of fact in this instance the jury. The jury is the sole judge of the weight of the evidence, and the credibility of the witnesses, and its determination should not be disturbed where, as here, there is ample evidence in support thereof.
If this court were disposed to give effect to section 19 of article VI of the Constitution of California and section 371 of the Probate Code it would have granted a hearing and affirmed the judgment of the trial court.