Opinion
Rehearing Denied Dec. 26, 1930
Hearing Granted by Supreme Court Jan. 22, 1931.
Appeals from Superior Court, Los Angeles County; Harry R. Archbald, Judge.
Proceeding by William E. Briggs as executor, and others, to probate the will of Charles Yale, deceased, opposed by Harold L. Yale and others. From a judgment and order in proceedings by contestants to revoke an order admitting the will to probate, contestants and proponents appeal.
Affirmed in part, and reversed in part, with directions.
COUNSEL
Woodruff, Musick & Hartke, of Los Angeles, for contestants.
Harry A. Chamberlin, of Los Angeles, for proponents William E. Briggs, Claude F. Peters, and William E. Briggs.
Farrand & Slosson, of Los Angeles, for proponent Ralph B. Hardacre.
OPINION
YORK, J.
The proceedings included in these appeals arose out of a petition for revocation of an order admitting to probate a certain instrument purporting to be the last will and testament of Charles Yale, deceased. The contest was tried before a jury.
The Supreme Court has heretofore dismissed the appeals from the several minute orders referred to in its opinion in the Matter of the Estate of Charles Yale, Deceased, etc., reported in 208 Cal. 102 , 280 P. 358. It has, therefore, simplified the consideration by this court of the appeals to that extent.
The appeals now pending are: (1) By the contestants, from that part of the judgment granting certain motions for nonsuit and dismissing the contest with respect to the grounds of contest therein specified; and from that part of the judgment dismissing the contest as to two of the contestants because they were not parties interested therein; and from an order granting the motion of the proponents of the will for a new trial of the contest. (2) By the proponents, from an order denying their motion for judgment notwithstanding the verdict.
The verdict of the jury was in favor of the contestants on the issue of mental incompetency, the court on the trial having ordered nonsuits against the contestants on the issues of undue influence, fraud, conspiracy, and lack of proper execution of the will. After judgment was entered, a motion for a new trial of the contest was made by the proponents which motion was granted.
The very voluminous transcript discloses a vast amount of evidence as to the mental condition of the decedent, which the proponents contend fails to show any mental incompetency, or at least any incompetency to make a will, and which evidence, it is contended by the contestants, shows undue influence, fraud, conspiracy, and lack of proper execution of the will, and a total lack of testamentary capacity.
A careful analysis of all of the evidence does not justify the statement of the contestants contained in their summary as to their proof of Mr. Yale’s mental condition. A condensed statement, as the court views it, is that he was a man well along in years suffering from a great many ailments, and that he suffered "a slight stroke" prior to the making of the will. But the record does disclose that he knew the extent of his property; that he knew who were the objects of his bounty, and that he had decided ideas as to the persons to whom he desired to leave his property, apparently uninfluenced by any delusions or improper suggestion of any person. It is true, however, that the conclusion (from facts not stated) of one witness is in the record showing that, about the time the will and codicil were executed, the deceased (in the words of the witness Wellman) was not "in a condition mentally to really make a will in the first place, and in the second place I thought his physical condition was such that it would tax his physical condition to attempt to do so, assuming that it would take some time, which I believed it would take to get down what he would want to do."
The trial judge, however, who heard all of the evidence, granted the motion for a new trial of the contest and this, we think, was justified by reason of the condition of the case after due consideration of all of the evidence introduced before the jury. There were apparently no material errors in the introduction of the evidence, nor in the giving of the instructions to the jury, and the motion evidently was granted solely because the trial judge concluded that the verdict was not satisfactorily sustained by the evidence.
The motion for a judgment in favor of the proponents and appellants William E. Briggs, Ralph B. Hardacre, Claude F. Peters, and William E. Briggs, as executor, notwithstanding the verdict of the jury, on the evidence as disclosed by the cold record before us, should have been granted by the trial court, as there was no evidence other than the conclusion given in evidence, as above stated, to overcome the presumption of the sanity of the decedent at the time the will was executed, which presumption the contestants must overcome by a showing affirmatively and by a preponderance of the evidence. Estate of Smith, 200 Cal. 152 at page 158, 252 P. 325, 328; Estate of Fleming, 199 Cal. 750, 251 P. 637, 638.
In Estate of Smith, supra, a quotation from the Estate of Perkins, 195 Cal. 699, 235 P. 45, is pertinent here as to both motions made: "Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) Insanity of such broad character as to establish mental incompetency generally; or (2) some specific and narrower form of insanity under which the testator is the victim of some hallucination or delusion." And, as stated by our Supreme Court in the Estate of Smith, supra, following this quotation: "*** And, even in this latter class of cases, the evidence ‘must establish that the will itself was the creature or product of such hallucination or delusion.’ " However, the court, who heard all the evidence, concluded that it was best in the interest of justice to order a retrial of the contest.
The Supreme Court in the Estate of Sexton, 199 Cal. 759 at page 762, 251 P. 778, 779, says: "A motion for a new trial on the ground of insufficiency of the evidence to justify the verdict or other decision is addressed to the sound legal discretion of the trial court, and its action in granting the motion will not be disturbed on appeal unless it appear that there was a clear abuse of such discretion. [Citing cases.] The precise test whereby to determine when a trial court abuses its discretion in granting a new trial after the verdict of a jury upholding a will appears not to have been determined by any previous decision of this court. This much, however, seems certain. If the entire evidence upon the issue of mental competency is of such a character that it would not have supported a verdict for the contestant had the jury brought in such a verdict, then it should be held that the trial court abused its discretion in granting the new trial. Indeed, this seems to be the view taken by counsel on both sides of this appeal. The question then is this: If the jury had found for contestant, would its verdict have totally lacked the support of substantial evidence? If it would, then the order granting the new trial must be reversed."
Quoting from the same case on page 763 of 199 Cal., 251 P. 778, 780: "A testator is of sound and disposing mind and memory if, at the time of making his will, he has sufficient mental capacity to be able to understand the nature of the act he is doing, to understand and recollect the nature and situation of his property, and to remember and understand his relations to the persons who have claims upon his bounty and whose intrests are affected by the provisions of the instrument. [Citing cases.] The actual mental condition of the testator at the time of the execution of the will is the question to be determined. Estate of Perkins, 195 Cal. 699, 235 P. 45."
Quoting again from the Estate of Sexton, supra, at page 766 of 199 Cal., 251 P. 778, 781: "Testamentary capacity is always presumed to exist until the contrary is established. That is to say, the presumption is always that a person is sane, and the burden is always upon the contestant to show affirmatively and by a preponderance of evidence that the testator, at the time of executing the will, was of unsound mind." Therefore, the court did not err in granting the motion for a new trial.
On the authority of the cases hereinbefore cited, and after a scrutiny of the entire evidence introduced in the trial of the contest in the lower court, the order of the trial court denying the motion for judgment in favor of the respondents, notwithstanding the verdict rendered by the jury, should be reversed. See, also, Estate of Redfield, 116 Cal. 637, 48 P. 794; Estate of Casarotti, 184 Cal. 73, 192 P. 1085. As was held in the Estate of Fleming, supra: "When a motion for a directed verdict, which should have been granted, has been denied, and a verdict rendered against the moving party, it is the duty of the court, at any time before the entry of judgment, either of its own motion or on motion of the aggrieved party, to render judgment in favor of the party aggrieved, notwithstanding the verdict. Code Civ.Proc. § 629. Appellant is here contending that the power of the trial court in these matters is limited, by the provision of the section, supra, to granting a motion for judgment notwithstanding a verdict in those cases in which the antecedent motion for a directed verdict ‘should have been granted,’ and that, therefore, if for any reason the motion for a direction by the court was properly denied, the court is without power to grant the motion for judgment notwithstanding the verdict. *** Assuming, but not deciding, that the motion for a directed verdict was properly denied for the reasons stated, it does not follow that such denial was a bar to the granting of the motion for judgment notwithstanding the verdict. Appellant was not injured. *** The motion was denied, and the case was submitted to the jury, carrying with it the benefit of the court’s ruling in the contestant’s favor. We are of the view that section 629 of the Code of Civil Procedure relates to the granting of a motion for judgment notwithstanding the verdict in a case in which the motion for a directed verdict ‘should have been granted’ on the evidence, and does not lend itself to the narrow construction appellant attempts to put upon it. *** The trial court had power to direct the jury to render a verdict in favor of the respondents, unless there was substantial evidence tending to prove all the controverted facts necessary to establish the contestant’s case. It was not necessary that there should have been an utter absence of conflict in the evidence. To deprive the court of the right to exercise its power, if there was a conflict, it must have been a substantial one. Estate of Sharon, supra [179 Cal.] p. 459, 177 P. 283; Estate of Baldwin, 162 Cal. 471, 123 P. 267."
There is no evidence in the record which shows or tends to show any undue influence, conspiracy, fraud, or lack of proper execution of the will and codicil in question, and there is no proof in the record to sustain the contention of Jennie Ethelyn Miller Grisier or Richard Miller that they are parties entitled to contest said will or codicil. They are the children of Mr. Yale’s sister, who was living at the time of the contest.
Therefore, that portion of the trial court’s judgment is affirmed wherein it finds that said children of the sister of the decedent are not interested in said contest and are not proper parties to said contest. That part of the judgment is also affirmed which granted certain motions of nonsuit and dismissed the contest with respect to the grounds of contest therein specified. The order of the trial court granting the motion for a new trial is affirmed. The order denying the motion of appellants William E. Briggs, Ralph B. Hardacre, Claude F. Peters, and William E. Briggs, as executor, for a judgment in their favor notwithstanding the verdict of the jury in favor of respondents, is reversed.
We concur: CONREY, P.J., and HOLLZER, Justice pro tem.
On Rehearing.
PER CURIAM.
The petition of contestants for a rehearing of this cause is denied.
By reason of inadvertence, in rendering the judgment of this court, we omitted to give direction for entry of judgment notwithstanding the verdict. In view of the conclusions stated in the opinion, such direction should be given. For this reason alone, the petition of proponents for a rehearing is granted and the cause is resubmitted. Upon such resubmission, and for the reasons set forth in the opinion now on file, that portion of the trial court’s judgment is affirmed wherein it finds that said children of the sister of the decedent are not interested in said contest and are not proper parties to said contest. That part of the judgment is also affirmed which granted certain motions of nonsuit and dismissed the contest with respect to the grounds of contest therein specified. The order of the trial court granting the motion for a new trial is affirmed. The order denying the motion of appellants William E. Briggs, Ralph B. Hardacre, Claude F. Peters, and William E. Briggs, as executor, for a judgment in their favor, notwithstanding the verdict of the jury in favor of respondents, is reversed; and the superior court is directed to grant said motion of said appellants Briggs, Hardacre, Peters, and Briggs, as executor, and enter judgment in their favor. C.C.P., § 629.