Opinion
11-10-1952
In re JAMISON'S Estate. JAMISON v. JOHNSON et al. * Civ. 18730.
Edward Alton, Frank M. Sturgis, Beverly Hills, and Thomas B. Sawyer, San Pedro, for appellant Katherine H. Jamison. Allan F. Bullard, San Pedro, for appellant minors. Frederick W. Mahl, Jr., Los Angeles, for the other appellants. Church, Church & Haward, Los Angeles, for respondent.
In re JAMISON'S Estate.
JAMISON
v.
JOHNSON et al. *
Nov. 10, 1952.
Rehearing Denied Dec. 1, 1952.
Hearing Granted Jan. 8, 1953.
Edward Alton, Frank M. Sturgis, Beverly Hills, and Thomas B. Sawyer, San Pedro, for appellant Katherine H. Jamison.
Allan F. Bullard, San Pedro, for appellant minors.
Frederick W. Mahl, Jr., Los Angeles, for the other appellants.
Church, Church & Haward, Los Angeles, for respondent.
DRAPEAU, Justice.
Arthur C. Jamison died on February 11, 1950, at the age of eighty-three years. His son, Chancery B. Jamison, presented for probate a holographic will dated December 31, 1949, to-wit: 'Dec. 31-49 'I hereby revoke all past wills--codicils by me made--declare this is my last will--I give all my properties to my four heirs as follows
Lea Patterson 2% Frances Johnson 5% Chance Jamison 85% Louise Jamison 8% 'I appoint Chance Jamison as Executor of my will without bond A. C. Jamison'
California Trust Company also offered for probate a witnessed will prepared and dated May 17, 1948.
The sole surviving heirs were the two daughters, Leanore Patterson and Frances Johnson; the son, Chancery B. Jamison, and Louise Jamison, the widow. Testator's first wife and the mother of the three children died December 31, 1945.
By the terms of the witnessed will, testator bequeathed $5,000 each to his daughters, his son and his brother Roy; $15,000 to his widow, Louise; $50,000 to Katherine H. Jamison (the divorced wife of his son); and the residue of his estate to his grandchildren. California Trust Company was named executor. The beneficiaries under that will, with the exception of the widow and Jeanne Jones, filed written opposition to the probate of the holographic will of December 31, 1949.
Grounds of the contest were: (1) the will was not executed by testator; (2) it was not executed with the required formality; (3) undue influence was exerted upon testator by his son; and (4) testator was mentally incompetent to execute a will.
At the close of contestants' case, the trial court granted proponent's motion for nonsuit as to all grounds 'except as to the sole issue of competency.'
After a thirty-day trial resulting in over two thousand pages of reporter's transcript, the court found that testator was of sound and disposing mind when he executed the holographic will of December 31, 1949. Thereafter contestants' motion for a new trial was denied. This appeal is from the judgment that 'said will is entitled to be admitted to probate', and denying petition for probate of the prior witnessed will.
It is here urged by appellants that (1) the court erred in granting proponent's motion for nonsuit on the issue of undue influence; (2) the finding of capacity is not supported by the evidence; (3) the court erred in granting costs; and (4) the court erred in failing to comply with section 373 of the Probate Code.
The record discloses that Arthur C. Jamison was a self-made man of Scotch descent, who died on February 11, 1950, at the age of 83 years. He left an estate which had a stipulated value on October 2, 1950, of $237,000. He was a strong-willed and dominating type of person with a definite mind of his own and not easily influenced by others. He lived in Spokane, Washington, when his children were young. He moved to Los Angeles and from 1921 until his death lived in his home at 818 Rimpau Boulevard. He was retired from active business for many years. He placed great importance on the family as a unit. He loved his grandchildren and took them on trips and showed great interest in their education and development. His principal interest outside of his family was that of investments in stocks and securities. He studied financial statements of the companies in which he held stock and followed the business of his son-in-law, Frank Johnson, the Van Camp Insurance Agency. He was also interested in the Van Camp Sea Food Company largely controlled by Mr. Johnson's stepfather.
Testator was first married to Frances Jamison, usually called 'Fan' or 'Nanny'. She was the mother of their three children, Chance, Leanore and Frances, and died December 31, 1945. In 1948, he married Louise Jamison, who survived him. He deeded his home to her and Katherine H. Jamison (the divorced wife of Chance) during the last year of his life, and left Louise $15,000 in the will of 1948. Most of the family parties throughout the years, especially at Thanksgiving, and Christmas, were held in testator's home. After his first wife's death he refused to leave his home and move to a hotel, because he wanted a place where he could have 'all of the children around him' and where he could see the 'babies.'
Chance was away from home during the early years. However, when his father told him he was 'running around too much and not standing still long enough to make any money', Chance went into the lumber business and had been so engaged for a period of ten years.
Testator became ill in May of 1949, and from May 20 until August 9, 1949, he was a patient in the California Lutheran Hospital. Thereafter he had 24-hour nursing care in his home until his death the following February 11th. He suffered from generalized arteriosclerosis, severe anemia and senile dementia; his condition became progressively worse from the time he entered the hospital until his death. Blood transfusions were administered continuously during this period. He frequently was disoriented as to time and place, and did not always recognize people.
After the onset of testator's illness, the relationship between himself and his son became closer. Chance visited him often, took him for automobile rides, played cards with him and sought to comfort him during his last illness. Contestants were also daily visitors both in the hospital and at the family home.
On the question of the property of an order granting a nonsuit, the following appears in Estate of Ridgway, 92 Cal.App.2d 325, 328, 206 P.2d 892, 894: '* * * the rule in this state is set forth in Estate of Flood, 217 Cal. 763, 768, 21 P.2d 579, 580, as follows: 'A non-suit or directed verdict may be granted '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 the 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.'' The foregoing means that the conflict, or the fact that there is a conflict, must be disregarded. The rule is as applicable in will contests as it is in other forms of litigation. Estate of Ricks, 160 Cal. 450, 117 P. 532. (Emphasis included.) * * * In reference to the matter of undue influence, it is said in Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25, 27, "The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person * * * unless there be proof of 'a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made." Estate of Gleason, 164 Cal. 756, 765, 130 P. 872, 876.' * * * Although it is true, as argued in appellants' brief, that undue influence may be established by indirect and circumstantial evidence, such proof, whether direct or circumstantial, must be of a substantial nature;--conjecture will not suffice.'
And in Estate of Llewellyn, 83 Cal.App.2d 534, 562, 189 P.2d 822, 839, 191 P.2d 419, this court held that 'Before there is imposed upon the proponent of a will the obligation of presenting evidence of volition, and before the question as to undue influence becomes one of fact for determination by a jury, there must be evidence, the probative force of which establishes (1) the relations between the one charged with exercising the undue influence and the decedent affording the former an opportunity to control the testamentary act; (2) that the decedent's condition was such as to permit of a subversion of his freedom of will; (3) that there was activity on the part of the person charged with exercising undue influence; and (4) that such person unduly profited as beneficiary under the will. Estate of Graves, 202 Cal. 258, 262, 259 P. 935; Estate of Hampton, 39 Cal.App.2d 488, 498, 103 P.2d 611. It is also the law that evidence must be produced that pressure was brought to bear directly upon the testamentary act. Estate of Arnold, 16 Cal.2d 573, 577, 107 P.2d 25.'
Proponent took the stand and testified that the document dated December 31, 1949, heretofore set out in full, was entirely written, dated and signed in the handwriting of his father, Arthur C. Jamison, deceased; that in his opinion, testator was of sound mind on that date and was not acting under the undue influence of any person.
Under cross-examination by contestants, Chance Jamison testified that he saw the will for the first time when his father handed it to him on February 7, 1950, under the following circumstances: 'I told him I was going to leave and he said, 'Keep your shirt on.' He said, 'Come back here.' He said, 'Sit down here. I am going to talk to you. Sit down on the edge of the divan.' * * * I sat down there and he said, 'I'm all through. I won't be here much longer.' And he said, 'Here,' and he handed me the will, and he said, 'Don't show this to anybody until after my death.' 'Q. And he told you it was his will? A. No, he didn't. * * * Q. Did you have any idea what this paper was? A. No, I didn't. Q. Was your father in the habit of handing you papers? A. Yes. He handed me a lot of them. * * * He handed me papers every day or two, financial statements of stocks, and wanted me to read them.'
Proponent further testified that he looked at the paper when he got home but 'never had a chance' to discuss it thereafter with his father, who died four days later.
To the question: 'Mr. Jamison, to your knowledge was there anyone present when the will of December 31 was written?', proponent replied: 'All I know about that will is that I didn't ask him to write it and I don't know when he wrote it, and I didn't see him write it, and I didn't know anything about it until February 7. Q. The question was: Was anyone present at the time, so far as you know? * * * When the will was written? A. I don't know when it was written, I told you. I never saw him write it. I never asked him to write it, and I never saw the will until February 7. * * * Q. By Mr. Bullard: Do you know of anyone who was present, other than your father, when the will was written? A. No.'
Other than the foregoing, no evidence was offered by either proponent or contestants as to how or where the will was prepared.
An examination of the document itself reveals that the handwriting is firm and legible. It contains the essential requirements for a valid holographic will. Sec. 53, Probate Code. Testator (1) declared it was his will; (2) revoked all prior wills and codicils; (3) disposed of his entire estate to his four heirs by name, who were the natural objects of his bounty, designating the percentage that each should receive; (4) appointed an executor to serve without bond; and (5) dated and signed the document.
In granting the motion for nonsuit, the trial court commented that 'Conjecture and surmise, as I have indicated, will not take the place of positive proof, and, therefore, so far as the proof is concerned, there was no prior activity in securing the execution of this particular will.'
However, appellants assert that activity of respondent in the preparation of the will could be inferred from circumstantial evidence presented by them, and that they were entitled to have the issue of undue influence submitted to the trier of fact. The trial court decided at the close of their case, that contestants' evidence was insufficient to raise that inference. This court is of the opinion that such ruling was proper.
Witnesses for appellants testified that testator was in an advanced stage of senile dementia; that on September 10, 1949, he had a generalized arteriosclerosis with diminution of the blood flow to the brain; secondary anemia and a weak heart. When he was taken to the hospital he changed from an autocrat to a man of complete docility; he made no objection to signing a petition for appointment of a guardian, and within a few days signed one nominating his wife as guardian of his person, a second nominating his daughter Frances, and then a third, again naming his wife. He lost his memory for recent events, was confused about his surroundings, failed to recognize members of his family, his doctor and his lawyer.
Appellants also emphasize the fact that it was not until testator's last illness that proponent took any interest in his father's affairs. They introduced evidence that testator had 'no use for Chance'; that Chance was no friend of his because he had reported him for violation of income tax; and that he told his granddaughter Patricia Dunne that Chance 'wasn't any good.'
Appellants urge that the following incidents support an inference that proponent was active in the preparation of the will of December 31, 1949:
The testimony of Mrs. Frances Johnson that sometime in May of 1949, she had a conversation with her brother Chance regarding the witnessed will of May, 1948, to-wit: 'I told him that my Uncle Clare had been down, and said that he had seen the will, and that Louise was in for $15,000, Katherine for $50,000, and he also told us what my sister and my brother and I were in the will for, and also the grandchildren were to have the rest. * * * He (Chance) said he still didn't believe any of it, although he knew he was in it for peanuts and that he was going to break the will.' Also, around August 1, 1949, at a meeting in attorney Arkoff's office at which she was present, Chance inquired: 'If we can get him (testator) to sign for my sister as his physical guardian, could we also get him to make a new will?' Shortly after this, the witness and her brother Chance visited their father in the California Hospital, at which time Chance showed her a will in his handwriting and said: "Do you think he (testator) will sign this?' And I said, 'I don't know', and he handed it to my father, and my father read it and said, 'Put it over there. I will think about it.' My brother put it back in his pocket.' Again in September, while the witness and her brother were talking to their father at his home, Chance took the same paper out of his pocket and handed it to the testator, who read it and said: 'Leave it and I will show it to Louise.'
Both this witness and her mother-in-law, Mrs. Van Camp, testified that on January 12, 1950, while visiting with testator, who was sitting up in a chair in the living room of his home, Chance Jamison said: 'Dad, you said if I would get the girls Leanore and Frances down here, you would make a new will.' To this testator replied: 'I didn't say anything of the sort. * * * Who is Leanore?'
It should here be pointed out that both Leanore and Frances disapproved of their father deeding his home to Katherine and Louise, as well as of his legacy of $50,000 to Katherine, and had discussed these matters with their brother. Also, that the conversation of January 12, 1950, occurring as it did after the holographic will here in question was executed, corroborates the testimony of Chance Jamison that he knew nothing of that will until his father handed it to him on February 7, 1950.
From our examination of the voluminous record, we are convinced that contestants' testimony raised nothing more than a mere suspicion that respondent had anything to do with the will of December 31, 1949.
As stated in Estate of Rabinowitz, 58 Cal.App.2d 106, 111, 135 P.2d 579, 582: 'By an unbroken line of authorities in this state, it is firmly established that however unnatural or unjust a will may appear to be, and however much at variance with expressions by the testator concerning relatives or the natural objects of his bounty, the testamentary document may not be held invalid on the ground of undue influence unless there be a showing of some sort of pressure which overpowered the mind and mastered the volition of the testator at the very moment of execution.' No such showing has been made in this case.
Appellants next urge that the finding of capacity is not supported by the evidence, because:
1. The medical testimony shows lack of capacity;
2. The testimony of nurses and others corroborates the medical diagnosis;
3. The will itself indicates that testator lacked capacity because testator named his son executor 'without bond', and omitted his grandchildren from the will.
'When an attack is made upon a verdict rendered in a will contest on the ground that it is not supported by substantial evidence, the province of an appellate tribunal is the same as in any other civil case. And the power of a reviewing court 'begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. And when two or more inferences can reasonably be deduced from the facts, a reviewing court is not authorized to substitute its deductions for those of the triers of fact'. Estate of Russell, 80 Cal.App.2d 711, 715, 182 P.2d 318.' Estate of Llewellyn, 83 Cal.App.2d 534, 543, 189 P.2d 822, 827, 191 P.2d 419.
Dr. Clarence H. Nelson lived next door to testator and met him socially in 1942; he testified that he first saw testator professionally in 1946 or 1947. Mr. Jamison was ill about a week before the witness was able to persuade him to go to the hospital on May 20, 1949. The patient was then suffering from generalized arteriosclerosis, severe anemia and senile dementia, a progressive disease. He was confused, disoriented as to his surroundings, as to place and time; very forgetful; read the paper upside down. The doctor did not recall December 31, 1949, 'as a specific night that I saw him', but did not believe that the patient was of sound mind on that date, or that he knew the nature and situation of his property; that he was not capable of adding the figures 8-85-2 and 5 correctly. On cross-examination, this witness stated he had no recollection as to how the patient was on December 31; and to the question: 'Now the actions and personality of a person with senile dementia vary from time to time, do they not?', he replied: 'Yes, they can. He might be good one day and not so good the next day. He can go from bad to worse and back again to bad.' When asked the effect of a blood transfusion upon the patient, the witness stated: 'The effect was both good and bad. Sometimes we would give him a transfusion, and that evening and the next day he would be terrible. He would be very much worse, physically and mentally, and at times he was taken to his bed, and again he would have a transfusion, and it seemed to give him a physical lift. He felt better. * * * He seemed to be happier after a transfusion. Q. One of the results of a transfusion would be to furnish more blood and oxygen to the brain cells? A. Yes, it was. Q. And senile dementia is a disease in which there is a lack of nourishment to the brain cells? A. That is right. Q. So that the natural result of a transfusion would be to nourish those brain cells and have a beneficial effect upon his brain as well as the rest of his body, would it not? A. Yes, theoretically, it would.' This witness did not see Mr. Jamison on January 1 or 2, but he did consent to let him take an automobile ride to San Pedro after Christmas of 1949, and saw him watching television around that time. It was stipulated that Mr. Jamison had a blood transfusion on December 26, 1949, at 4:05 p. m.
Dr. Garfield S. Barnett, who saw testator on September 9, 1949, for about two and one-half hours while giving him a blood transfusion, testified that 'At the time I saw him he was definitely disoriented. He was childish in behavior and confused, and therefore I would say that he was not of sound mind at the time I saw him.'
Dr. Robert L. Wiley spent between 35 and 40 hours with testator between April 22, 1949, and February 10, 1950; administered eleven blood transfusions from August 25, 1949, to January 1, 1950. He testified that he 'held him even' during this entire period of time by increasing the number of transfusions; that he saw testator on December 26, 1949, and on January 5, 1950, and that 'he most certainly wasn't of sound mind on those dates.' He did not see the patient on December 31st, but he felt that he did not return to normalcy subsequent to December 26th, 'because my impression of an unsound mind is based on an irreversible change in his mind and circulation and in light of that I couldn't very well say that he would return briefly. * * * I don't believe he was of sound mind on December 31.' However, this witness stated that there was invariably a slight improvement in the patient's condition as result of a transfusion; that he was a little brighter and could enunciate more clearly.
Dr. Orville O. Witherbee saw testator eight times between August 8 and September 10, 1949, during Dr. Nelson's vacation. He testified that Mr. Jamison suffered severe anemia requiring transfusions every six or seven days; that he was considerably underweight, malnourished and quite weak; suffered from advanced senile dementia; his memory for recent events was very poor, and he never recognized the doctor by name, always asking 'Who is that fellow?' To the question: 'Doctor, during this period you were attending Mr. Jamison, did you form any opinion as to about how long you thought he would live, in view of the circumstances as you found them to be?' the witness replied: 'Yes, I did. I was completely astounded as to his length of life. I saw him in August of 1949, and I was firmly convinced in my own mind that if he lived two weeks, that would be something, and I didn't see how he could, and I understand that he lived several months.' He gave as his opinion that Mr. Jamison did not have sufficient mental capacity on December 31, 1949, to know that he was making a will.
With the exception of Dr. Nelson, none of these doctors saw testator on December 31st, and their opinions were arrived at by an evaluation of his physical condition from a medical standpoint. While all testified that senile dementia is a progressive disease from which there is no turning back, they admitted that his condition varied and that testator was better after he was given a blood transfusion.
And, as stated in Estate of Worrall, 53 Cal.App.2d 243, 246, 127 P.2d 593, 595: 'Even an insane person may make a will during lucid intervals if the facts disclose the required elements of capacity at the time in question.'
Upon his return from the hospital on August 9, 1949, until his death, testator had three nurses--Hastings, Taylor and Thomas--on twenty-four hour duty. Their charts reveal that throughout this period their patient was restless, confused, talked in his sleep, was very feeble, too weak to walk, asked for a cigar and could not smoke it; thought he was in a hotel; wanted to go home; mumbled and was incoherent; was inclined to tip over backwards; acted very vague but fairly strong on feet; yelled to get up out of bed; irrational; mind cloudy, talked constantly. These records also show that testator was alert, was quiet, smoked cigar without any trouble, enjoyed television. Lete in October he was smoking, reading paper, asked about a statement he had read, played the piano, looked for letters and walked in the garden. On December 20th he watched pictures with family. On December 24th the family was visiting him. At 7:00 p. m. he asked to go to bed with help of nurse and son, and after he got to bed he smoked a cigar and spoke to several of his children and grandchildren. On February 8th, he 'spoke at times, could understand him but only a whisper.'
The chart for December 31, 1949, notes a big breakfast at 8:30 a. m. Temperature 98, pulse 70, respiration 22. At 11:00 a. m. grapefruit juice and whiskey; 12:30 p. m., shaved, bath, alcohol rub; 1:00 p. m., milk and whiskey; 1:30, out for a ride; 3:00 Nurse Taylor off duty and Nurse Hastings on, patient in chair; 3:30 resting on couch, egg nog and whiskey; 4:30 to bathroom; 6:00 dinner; 6:30 reading paper; 7:00 Dr. Nelson visited patient; 8:00 son and wife here; 9:00 egg nog and whiskey; 10:00 patient asleep. Jan. 1, 1950 12:30 a. m. Milk and whiskey; 3:00 same--coughing at intervals; 6:00 juice; 6:15 alcohol rub; 7:00 asleep; 8:00 breakfast; 12:00 noon, milk and whiskey, partial bath; 1:30 p. m. patient lying down; 3:15 Mrs. K. Jamison here; 3:30, son and wife here; 4:00 egg nog (no whiskey); 6:00 dinner, ate very well; 7:00 television; 8:00 egg nog and whiskey; 8:15 bathroom; 9:00 coughing; 10:00 asleep; 11:00 asleep; Hastings off and Thomas on duty. Jan. 2, 1950: 1:00 a. m. milk and whiskey--coughing a little; 6:00 juice and alcohol rub; 7:00 resting more comfortably. Thomas off and Taylor on duty. 7:45 breakfast; 10:00 listening to television; Rose Parade; fruit juice; 12:30 p. m. egg nog, bath, alcohol rub, shaved; 1:00 ice cream; 2:00 watching ball game; 3:00 same; Taylor off and Hastings on duty; 4:00 oxygen--egg nog--to bed; son and wife here and others. 4:45 patient sleeping soundly; 5:15 awake; 6:00 dinner; 6:30 television--smoking. 7:30 Buddy Patterson and wife here; 8:30 egg nog; 9:30 bathroom; 10:00 coughing hard at times; 10:30 asleep; 11:00 Hastings off and Thomas on duty. 11:30 coughing--changed position--more comfortable.
Read as a whole these charts disclose that testator led a reasonably normal life for a man 83 years of age, and that his mental and physical condition varied from day to day.
Nurse Hastings testified that in her opinion testator was of unsound mind on December 31, 1949; that shortly after she came on duty that day, testator's eyes were 'vacant'; he looked 'dopey' and she believed opiates had been given to him.
Various members of testator's family testified that although they visited him regularly, he never spoke to them or called them by name; was forgetful, could not remember anything; lost interest in the stock market; denied he had deeded his home to his wife and Katherine Jamison; was afraid he was running out of money; was confused and completely disoriented. The widow, testator's attorney, Mrs. Bayard, a neighbor, Katherine Jamison, his granddaughters, Jean Patterson Curtis and Jeanne Jamison Jones, Mrs. Van Camp were all of the opinion that testator was not of sound mind on December 31, 1949.
On the other hand, Nurse Agnes Taylor took the stand and testified with respect to events occurring on December 31st, as follows: When she arrived at 7:00 a. m. testator was asleep in bed. Around 9:00 he arose and had breakfast with his wife in the breakfast room. While they were eating, Mrs. Jamison's son-in-law and grandson from Ohio, William and Weston Gardner, arrived. They were introduced to testator, who asked why they were in Los Angeles. Mr. Gardner replied that they had come to see the Rose Bowl Game and Mr. Jamison said he planned to watch it on television. The Gardners were going to San Diego for the day and wanted Mrs. Jamison to go along, if testator approved. He did and said he was glad that she could go. He asked where the Gardners were staying. After breakfast, testator joined the Gardners, Louise Jamison and Mrs. Taylor in the living room for about half an hour. Mrs. Jamison and the Gardners left about 10:00 a. m.
Chance Jamison and his wife, Esther, arrived about noon. Testator expressed regret that they did not come earlier to meet Louise's relatives; said that they were fine looking people and had taken Louise to San Diego for the day. Testator then asked Chance to take him for a ride. Chance asked where he would like to go. Testator said he would like to drive around the neighborhood a little, then out Wilshire Boulevard so he could see the church that was being built. Mr. Jamison, Chance, Esther and the witness Taylor left the house about 1:30 p. m. They rode around the neighborhood for several blocks to see the houses of people Mr. Jamison had known in prior years. Mr. Jamison said he wanted to see the Christmas decorations. They then drove out Wilshire Boulevard and stopped at the Carnation building where they parked and had ice cream cones. From there testator said he wanted to go up in the Hollywood Hills to see the house where his brother used to live, and directed Chance how to get there. They then drove down Hollywood Boulevard to see the decorations. Testator commented that he didn't think they were as pretty as they had been the previous year. They arrived home at 3:00 p. m. Nurse Taylor left and Nurse Hastings came on duty.
Mrs. Esther Jamison testified that when they arrived hom, testator said he would like some of the good muffins she used to make. She couldn't find any muffin tins in the kitchen, so she and Chance went to Ralphs' Market and bought some muffins. When they returned testator was in his bedroom and they left around four thirty. When they returned to the house about seven o'clock, they found testator sitting in an easy chair in the living room. He mentioned that Louise had not yet returned from San Diego and had not telephoned. Chance told him not to worry that she would be along. Testator said, 'What about a game of cards?' Chance set up a bridge table and they started to play a three-handed game of rummy. Shortly after eight o'clock, Louise and Mr. Gardner came in. Louise said they had had a marvelous time, and Mr. Jamison said, 'Well, where were you?' Louise replied, 'We stopped at Victor Hugo's in Laguna and had dinner.' Chance and Esther left about eight thirty.
Mrs. Alcorn, testator's next door neighbor, testified that she saw him almost every day for five years including December 31, 1949. She gave her reason for believing he was of sound mind on that day, 'Because he greeted me when I went over there, and he told me that he was being taken on an automobile ride by his son Chancey.' Further, she believed he was of sound mind on January 2, 1950, 'Because he was sitting watching the television and making comments to me about the Rose Parade.'
The following statement by this court in Estate of Llewellyn, 83 Cal.App.2d 534, 553, 189 P.2d 822, 833, 191 P.2d 419, quoting from Estate of Russell, 80 Cal.App.2d 711, 719, 182 P.2d 318, appears particularly applicable here:
'While in the instant case, the testatrix was in feeble health, suffering from disease, aged and infirm, these facts are not sufficient of themselves to establish testamentary incapacity unless it be shown by a preponderance of the evidence that her condition of mind and body at the time of the execution of the will was such that she was unable to understand the nature and situation of her property and the disposing of it intelligently. In other words, it must be shown that her weakened and enfeebled condition had a direct influence upon the testamentary act. Section 20 of the Probate Code empowers every person of sound mind, over the age of 18 years, to dispose of his separate property by will. And the property being his to dispose of as he wills, he is not called upon to consult or satisfy the wishes or views of juries or courts. The presumption is always that a person was of 'sound mind' at the time of execution of his will, and the burden therefore always rests upon the contestants to show affirmatively and by a preponderance of the evidence, the incapacity of the testator and the further fact that, because of the mental or bodily infirmities with which the testator was afflicted, he devised or bequeathed his property in a way which, except for the existence of the aforesaid infirmities, he would not have done.' (Emphasis included.)
A minute examination of the entire record, from which the foregoing brief resume has been extracted, convinces us that the trial court's finding of testator's competency to execute the will in question is supported by substantial evidence.
'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 interests are affected by the provisions of the instrument.' Estate of Arnold, 16 Cal.2d 573, 586, 107 P.2d 25, 32.
The will itself is mute, but convincing evidence of testator's competency. It cannot be denominated unnatural just because testator left to his only son a larger amount than he left to his daughters and the widow.
It was stipulated that decedent's records showed payments by him to the various members of his family during the period from May 8, 1929, to May 3, 1949, as follows:
Patterson Family $ 1,740.00 Leanore Patterson 70,196.40 Robert Patterson 3,517.50 Robert Patterson, Jr. 5,838.05 Jean Curtis 3,956.40 Patricia Patterson Dunne 5,807.40 Virginia Patterson McClintock 6,899.07 Frances Johnson (stock) 1,134.75 (money) 3,051.00 Franklin Johnson (stock) 1,723.07 (money) 900.00 Jeanne Jamison Jones 6,254.05 Katherine H. Jamison 1,500.00 1/2 int. in house valued at 11,575.00 Louise Jamison 1/2 int. in house 11,575.00 Clare Jamison 800.00 Roy Jamison 6,900.00 Apparently no gifts were made to the son.
On the question of costs, section 1232 of the Probate Code provides that 'When not otherwise prescribed by this code or by rules adopted by the Judicial Council, either the superior court or the court on appeal, may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require.'
Rule 26(a) of Rules on Appeal provides: 'Except as hereinafter provided, the prevailing party shall be entitled to his costs on appeal as an incident to the judgment on appeal. * * * In probate cases, in the absence of an express direction for costs by the reviewing court, costs on appeal shall be awarded to the prevailing party, but the superior court shall decide against whom such award shall be made.' See, also, Estate of Williams, 110 Cal.App.2d 50, 53, 242 P.2d 26. Hence, the allowance of costs to respondent was proper.
Appellants finally urge that the trial court erred in its failure to comply with the terms of section 373, Probate Code, to-wit: '* * * or upon the proof taken if a jury is waived, the court must render judgment, either admitting the will to probate or rejecting it.'
It is contended that by the judgment reciting 'that said will is entitled to be admitted to probate as such', the court 'did neither admit nor reject the will.'
This court in its denial of respondent's motion to dismiss this appeal held that 'it is self-evident that uncontested wills are to be admitted or rejected by way of 'orders' and that contested wills are to be admitted or rejected, not by orders but by judgments.' Estate of Jamison, 107 Cal.App.2d 483, 486, 237 P.2d 546, 548.
The Probate File transferred to this court as an exhibit on appeal, contains an 'Order Admitting Will to Probate and for Letters Testamentary' which was signed and filed contemporaneously with the judgment above mentioned. The order reads as follows: 'It is ordered and adjudged by the court that said Arthur C. Jamison, also known as A. C. Jamison, died on the 11th day of February, 1950, a resident of Los Angeles County, State of California, leaving an estate in Los Angeles County, California, and that the document heretofore filed purporting to be his last Will and so alleged to be in said petition, be admitted to probate as the last Will of said deceased; that Chancey B. Jamison, also known as Chance Jamison, be appointed Executor of said last Will, and that Letters Testamentary be issued to said Chancey B. Jamison, also known as Chance Jamison, without bond, upon his taking the oath required by law.' (Emphasis added.)
Moreover, the trial court found that the will here in question was a valid holographic will and that testator was competent in all respects to execute it. And concluded that the will was entitled to be admitted to probate. There is no doubt that it was the intent and purpose of the trial court when the judgment was signed to admit the will to probate.
Accordingly, the last line of paragraph numbered 1, on page 2 of the judgment is hereby modified to read: 'said Will is entitled to be and it is admitted to probate as such.'
As so modified, the judgment is affirmed; each party to bear his own costs on appeal.
WHITE, P. J., and DORAN, J., concur. --------------- * Subsequent opinion 256 P.2d 984.