Opinion
Rehearing Denied Jan. 29, 1932.
Hearing Granted by Supreme Court Feb. 25, 1932.
Appeal from Superior Court, Mariposa County; J. J. Trabucco, Judge.
Contest of the will of William Lances, also known as Billy Lances, deceased. From an order of the trial court directing the jury to answer certain interrogatories favorable to Abner B. Baker, proponent, and from a decree and judgment admitting the will to probate, John Brown, contestant, appeals.
Affirmed. COUNSEL
C. A. Degnan, of Fresno, Vincent S. Brown, of San Francisco, and S. P. Galvin, of Merced, for appellant.
H. H. Carleton, of Mariposa, Andrew R. Schottky, of Merced, and Marshall Nuckolls, of San Francisco, for respondent.
OPINION
PRESTON, P. J.
This is a contest of the will of William Lances, also known as Billy Lances, deceased.
John Brown, the contestant, appeals from an order of the trial court directing the jury to answer certain interrogatories favorable to proponent, Abner B. Baker, and also appeals from the decree and judgment admitting said will to probate.
The grounds of contest are as follows: (1) Unsoundness of mind; (2) that said will was procured by the undue influence of Abner B. Baker; (3) that said will was procured by fraud of Abner B. Baker; (4) that said will was not executed in the manner and form required by law.
Abner B. Baker, the executor and beneficiary under the will, filed an answer to the contest denying all the allegations thereof. The case went to trial before a jury. When the evidence on both sides was fully concluded, the proponent Baker made a motion for a directed verdict on all four grounds of contest. The motion was based upon the contention that contestant had failed to offer any evidence to support any of the grounds of contest. The learned trial court granted the motion in its entirety.
The will was subsequently admitted to probate and Abner B. Baker was appointed executor thereof, and this appeal followed.
Appellant contends that the court erred in directing a verdict in favor of the proponent Abner B. Baker and especially on the issue of undue influence.
The limits within which the trial court may exercise its power to direct a verdict have been definitely fixed and determined by many decisions of both the Supreme and Appellate Courts of this state, some of them of very recent rendition. In Re Estate of Caspar, 172 Cal. 147, page 149, 155 P. 631, 632, it was held that: "The right of a court to direct a verdict is, touching the condition of the evidence, absolutely the same as the right of the court to grant a nonsuit. It may grant a nonsuit only when, disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given." To the same effect is In re Estate of Sharon, 179 Cal. 447, page 459, 177 P. 283, 288, where the rule is stated in the following language: "It is a settled rule of law regarding trials by jury that in a proper case the court has full power to direct the jury to render a verdict. This power exists in favor of the defendant where there is no substantial evidence tending to prove all the controverted facts necessary to establish the plaintiff’s case. It is not necessary that there should be an absence of conflict in the evidence. To deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one."
This rule has also been adhered to in the following cases: Card v. Boms, 210 Cal. 200, 291 P. 190; Bannister v. L. A. Ry. Corp., 203 Cal. 427, 264 P. 756; Duggan v. Forderer, 79 Cal.App. 339-343, 249 P. 533; Wayland v. Latham, 89 Cal.App. 55-59, 264 P. 766; Maberto v. Wolfe, 106 Cal.App. 202, 289 P. 218; Perera v. Panama-Pac. Int. Exp. Co., 179 Cal. 63, 175 P. 454; Hunt v. United Bank & Trust Co., 210 Cal. 108, 291 P. 184; Rapp v. S. S. Co. (Cal.App.) 298 P. 67; In re Estate of Bryson, 191 Cal. 521, 217 P. 525; In re Estate of Unger, 188 Cal. 714, 206 P. 1003; In re Estate of Wall, 187 Cal. 50, 200 P. 929; In re Estate of Chevallier, 159 Cal. 161, 113 P. 130; In re Estate of Morey, 147 Cal. 495, 82 P. 57; In re Estate of Haupt, 200 Cal. 147, 252 P. 597; In re Estate of Casassa, 98 Cal.App. 97, 276 P. 366.
The facts disclosed by the record are briefly these: William Lances was an illiterate American Indian, but was possessed of considerable native ability and reasonably good business judgment. At the time of his death, he owned property in Mariposa county, where he lived, of approximately $25,000 in value, was unmarried, and had no children or other near relatives. John Brown, the contestant, is also an Indian, who claims to be an uncle of Lances, and one of his heirs at law.
Abner B. Baker is a white man and a duly licensed attorney at law, but had not been actively engaged in the practice of his profession for more than 20 years immediately prior to the trial of this case. He is listed by the State Bar of California as an "inactive member." He had been a close friend, neighbor, and adviser of Lances in business matters continuously for more than 20 years prior to Lances’ death. He had, however, made no charges against Lances for any service he performed for him, but they exchanged work around their respective homes. Neither did Mr. Baker represent Lances in any litigation or other matters requiring special skill or learning in the law. The record shows that Lances had one action to quiet title in the superior court and, also, an important lease to be drawn. In both of these matters he was by Baker advised to and did have another attorney to represent him. In fact, for the last two years of his life, which included the time the will was made, the district attorney in that county was his legal adviser in all important legal matters.
We think, however, it is fair to conclude from all the evidence that Mr. Baker was Lances’ confidential adviser in all ordinary business matters. Such advice was given to Lances more as a friend than as his attorney.
Several conversations occurred between Baker and Lances relative to the disposition by Lances of his property. Lances first suggested to Baker that he wanted to give his property to Baker’s daughter, a girl of about ten years of age. Baker strongly discouraged this idea. Some months later, Lances suggested to Baker that he would give his property to him (Baker). After some further conversation and some days later Baker wrote the will in question in longhand and it was signed by Lances in Baker’s home on December 19, 1929, in the presence of the two subscribing witnesses, and Baker and his wife. The will was then given into the possession of Lances and was found among his personal effects in his cabin after his death, which occurred on April 1, 1930--nearly four months after the will was made. The two subscribing witnesses testified that Lances asked them to witness his will and that Lances was in every respect competent to make a will and, also, testified to facts which show clearly that no fraud or undue influence of any kind had been practiced upon Lances by Baker, but, on the contrary, would establish the fact that said will was the free and voluntary act and deed of William Lances.
The testimony on the part of contestant goes no further than to present a case where a man, who, although admitted to the bar, had not practiced law for twenty years, draws a will for a close friend and neighbor who lived alone and had no near relatives, in which the retired attorney is the sole beneficiary under the will.
We will concede for the purposes of this decision that contestant has, at least, made a prima facie showing that a confidential relation existed between Baker and Lances when the will was made. It is true that a presumption of undue influence arises from proof of the existence of a confidential relation between the testator and the beneficiary "coupled with activity on the part of the latter in the preparation of the will." In re Estate of Higgins, 156 Cal. 257, 104 P. 6, 8; In re Estate of Baird, 176 Cal. 381, 168 P. 561; In re Estate of Nutt, 181 Cal. 522, 185 P. 393; In re Estate of Witt, 198 Cal. 407, 245 P. 197; In re Estate of Novotny, 94 Cal.App. 782, 271 P. 923, 273 P. 58.
But the evidence in the case merely shows that Baker, under the direction of Lances, performed the physical labor of writing the will. This is the extent of Baker’s "activity in the preparation of the will." There is no evidence showing, or tending to show, that Baker in any way "actively participated in procuring the will to be made." On the contrary, the evidence shows that Lances importuned Baker to prepare the will, first telling Baker that he desired to leave his property to Baker’s daughter, and Baker asked him not to do this, and finally Lances stated to Baker that he desired Baker to write the will in Baker’s favor, which Baker did.
We, therefore, have a mere disputable presumption of undue influence on the one hand, and the uncontradicted evidence of Baker and the two subscribing witnesses to the will, opposed to it on the other. Does this present a substantial conflict in the evidence? We think not.
There is nothing in contestant’s case which amounts to more than conjecture, surmise, or suspicion that Baker might have unduly influenced Lances to make a will in his favor. In Re Estate of Donovan (Cal.App.) 299 P. 816, 817, in which the Supreme Court denied a hearing on July 16, 1931, the court said:
"The sole question here presented is whether or not there is evidence in the record, viewed in the light most favorable to contestants, which would warrant the jury in concluding that the contested instrument was the product of the uncontrolled mind of the testator. As the correctness of the ruling of the court depends upon the evidence offered by the contestants, it becomes necessary to review the same.
"Preliminarily it may be stated that, in determining whether or not in a proceeding to consider a will the evidence is sufficient to require its submission to the jury, the same rules apply as in civil cases. Every possible inference fairly deducible and every favorable presumption fairly arising from the evidence produced must be considered as facts in favor of the contestants. All of the evidence must be taken as true, and, if contradictory evidence has been received, it must be disregarded. Estate of Arnold, 147 Cal. 583, 586, 82 P. 252. It is equally well established, however, that a motion for a nonsuit should be granted whenever it would be the duty of the trial court to set aside the verdict of a jury against the validity of the will. A finding of undue influence cannot be based upon mere surmise or conjecture. In the absence, therefore, of substantial proof, the issue must be withdrawn from the jury, and under such circumstances failure of the court to grant a nonsuit will constitute reversible error. Estate of Luckenbach, 205 Cal. 292, 301, 270 P. 961; Estate of Haupt, 200 Cal. 147, 252 P. 597; Estate of Casassa, 98 Cal.App. 97, 276 P. 366."
In Re Estate of Luckenbach, supra, we find this language, which is particularly appropriate: "To justify the submission of any question of fact to a court or jury there must be proof of a substantial character that the fact is as alleged." See, also, In re Estate of Graves, 202 Cal. 258, 259 P. 935; In re Estate of Relph, 192 Cal. 451, 221 P. 361.
That is the exact situation in the case at bar. Contestant’s evidence merely raises, as we have said, a disputable presumption of undue influence and does not create a substantial conflict in the evidence, and a verdict based thereon would have to be set aside as being unsupported by the evidence. Therefore, a directed verdict was proper.
Certainly a verdict holding the will invalid would not be permitted to stand, based, as it would have to be in this case, solely and alone upon this technical presumption of undue influence, in the face of all the undisputed evidence, surrounding facts and circumstances appearing in the record, which taken together, absolutely negatives any presumption, inference, or surmise that the will was, in the slightest degree, tainted by the influence of Baker.
We think the facts and circumstances adduced on behalf of contestant are fully sufficient to dispel, even under the rigid rule laid down in Smellie v. S. P. Co. (Cal. Sup.) 299 P. 529, the presumption of undue influence on the part of Baker. For example, the witness James Colvin Rust, produced on behalf of contestant, referring to a time in the middle of January, 1930, stated "that Lances claimed that Baker wanted him to sign some papers, but did not see what they were; Lances stated that somebody else did that business for him." Again, the evidence of Edward C. Hern, a witness for contestant, quotes Lances as stating to him in January, 1930, "that Baker was no friend of his; that he was always seeking to borrow money". Again the evidence of Alvis and Chris Brown, also witnesses for the contestant, referring to a time in the month of October, 1928, was to the effect that "Baker was attempting to borrow money from him but that he (Lances) refused to loan the money to him." The witness Grace Lebrado, produced by contestant, testified to the effect that Lances stated that "Baker wanted to live on his place but he did not want him to live there and secured a Mr. Anchor to take care of the place; that Baker was bothering him to sign something; that he hated Baker and did not like to have him around."
Lances, although uneducated, was by no means unintelligent, was in middle life when the will was made, and was not feeble either mentally or physically. He had the will in his possession for nearly four months after its execution and had ample opportunity to destroy it, if procured by coercion or undue influence of Baker. All these facts and circumstances and testimony on behalf of contestant are wholly inconsistent with the presumption sought to be established by contestant, and, in our opinion, fully dispel any presumption of undue influence.
We have given this case most careful consideration and diligently studied the able briefs filed on both sides, and we are of the opinion that the learned trial court was fully warranted in directing a verdict in favor of Baker upon all the grounds of contest.
There is no evidence whatever and no facts, inference or presumption to support the other three grounds of contest. Therefore, the order and decree and judgment should be affirmed, and it is so ordered.
We concur: PLUMMER, J.; THOMPSON, J.