Reiss v. Reiss

After the death of Rosa Reiss, her son, Moses Joseph Reiss, applied to the trial court for an order admitting to probate the purported will of the decedent. Max Reiss, her surviving husband, appeared and filed a contest. The petitioner answered the contest and the proceeding was heard before the trial court sitting without a jury. The contest was based on the grounds of lack of testamentary capacity, lack of proper execution, and on undue influence alleged to have been exercised by the petitioner.

1. The decedent Rosa Reiss and Max Reiss were husband and wife. Rosa had been married twice. Her first husband’s name was Katz. They had two sons, the petitioner, Moses Joseph, and a younger brother, Bernard. Both boys took the name of their stepfather. All were natives of Austria but came to America and located in the southern part of this state. At the time of her death Rosa was about sixty-six years of age. For some years she had been afflicted with diabetes. In January, 1934, she suffered a stroke and thereafter was paralyzed on the right side. Her face was distorted, she had little or no use of her right arm, and so little use of her right leg that she dragged it as she walked. Arteriosclerosis commenced to develop at a time prior to the stroke. Her family physician was Dr. L. D. Mahannah. He testified that he commenced to treat her in 1934. “Her mouth hung slightly open and her face was expressionless. There was not much expression in her eyes. The pupils reacted to light. One eye did not close. I tried to talk to her and it was difficult to carry on a conversation. Her speech was very thick and it was difficult to understand much, and her answers were not logical. I do not think she understood. She spoke slowly. I do not think she had the mental capacity to answer questions. She had no ability to carry on a coherent conversation. This continued to the time of her death. It existed in January, 1935. I made a diagnosis of arteriosclerosis. This is the hardening of the arteries as the different parts of the body do not get enough nourishment. There is not enough nourishment to the brain. There is a consequential effect on the brain making the patient mentally deficient. I have an opinion as to the degree of her mentality. She had the capacity of a six or eight year old child— if that old.”

The petitioner and his wife and Max Reiss and the decedent, all lived at Long Beach. It appears that the residences were not far apart. During the year 1934 the families visited each other at different times. In the latter part of July, or the first part of August, the decedent went to the house of Moses and remained there a few days. During that period

There was not a particle of testimony by any medical expert in any manner controverting what has been recited above.

Each party called witnesses who expressed opinions as laymen and as intimate acquaintances of the decedent respecting the mental sanity of the latter. Such evidence addressed to the capacity of an automaton of course has little, if any, weight. In this state “It is well settled that mere proof of mental derangement or even of insanity in a medical sense is not sufficient to invalidate a will, but the contestant is required to go further and prove either such a complete mental degeneration as denotes utter incapacity to know and understand those things which the law prescribes as essential to the making of a valid will, or the existence of a specific insane delusion which affected the making of the will in question.” (Italics ours.) (Estate of Shay, 196 Cal. 355 , 359 [ 237 Pac. 1079 ].) In the instant case there is no testimony whatever tying the case to the second class. The testimony was directed wholly to the first class. It is also settled law that “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

2. Passing to the claim that there was a lack of proper execution of the will, additional facts should be recited. Max Reiss and the decedent were a frugal couple. They accumulated a large amount of property. Both worked hard to contribute to the accumulation. Some of their funds were invested in real estate and some were in bank deposits. Apparently all stood under joint tenancy agreements. There is evidence that the decedent at times expressed a wish to so arrange her affairs that her share should stand of record in her name. She expressed that wish to the end that she should remain independent and have funds to live on. The record does not disclose a particle of evidence that she ever asked anybody to prepare a will for her. The proponent in numerous places testified that she never mentioned will to him and he did not to her. When she called on Mr. Doyle he expressed the opinion to her that the joint tenancy agreement could be broken by making certain conveyances and he undertook to prepare and cause those conveyances to be made. However, the making of the will arose purely collaterally and, as hereinabove stated, without any request being made by the decedent. A photostatic copy of the instrument is contained as an exhibit in the record. At the end of it there are some scratches in ink where the signature should be. It is quite impossible to say that the two scratches are the writing of Rosa Reiss. That is of the date of January 24, 1935. The same comment is equally applicable to a document written on the same day by Mr. Doyle addressed to Farmers and Merchants Bank and claimed to have been signed by the decedent. Another document written on January 25, 1935, acknowledged before a notary public on the same date, contains a signature that is quite plain and distinct. Another exhibit is a photostatic copy of the signature

3. The remaining attack is the assertion that there is no evidence showing the will was made by undue influence exercised by the decedent’s son Moses. As shown above it was the contention of Moses in the trial court that his mother never sought to make a will, that he never sought to have her make a will, and that Mr. Doyle never did. However, the evidence is clear that Moses was the son of the decedent, that down to the year 1934 their relations had been agreeable and that in many respects he had acted and was acting as a confidential agent of his mother. At the time the will was written the decedent was a guest in the home of Moses. At the time the will was signed the decedent was again a guest in the home of Moses. On different occasions Moses had taken his mother to different attorneys. Among others he took her to Mr. Doyle. Mr. Doyle was not of her selection, was not her attorney, and there was evidence to the effect that Moses promised to pay Mr. Doyle for his services. After the papers above mentioned were written in August, Moses continued to remain active and obtain data so that Mr. Doyle could draw up legal papers. Just why the papers were not signed in August the record is not clear. However, when the decedent returned to Moses’ house in January, he said to Mr. Doyle, “Now is the time, let’s go. I don’t want to take any more chances.” Moses testified to making that statement. His brother Bernard Reiss testified that in January, just before their mother died, Moses said to him, “I fixed it all right. If Max wants as much as four cents he has got to ask me about it, and if there is even a button off a shoe you and I get half of it.” Immediately after the funeral, at Moses’ house, he told Bernard of the papers that had been signed. Moses’ wife interposed, “You know she was not right mentally.” Moses answered, “What matters— she signed.” Immediately after the papers had been signed by the decedent, and on the same day, she was allowed to leave Moses’ home and return to her own home. In presenting his case the proponent never explained any of the foregoing facts. He interposed some denials but the truth of

The judgment appealed from is affirmed.

Nourse, P. J., and Spence, J., concurred.