King v. Wilson

This is an appeal by contestant, Gladys C. King, widow of George W. King, sometimes known as Henry H. King, from a judgment of nonsuit and an order admitting to probate his will and two codicils and appointing as executor without bond, proponent Griffin Walter Wilson, nominated as such by decedent in said will.

By the terms of this instrument, which he signed on November 5, 1928, Mr. King devised and bequeathed “all the rest, residue, and remainder of my estate, both real and personal of whatsoever kind or character and wheresoever situated, to my friends and benefactors, Griffin Walter Wilson and his

The widow, by her contest, alleged that the will and codicils should be denied probate on various grounds: First, defects in execution as follows: (a) that the instruments in question were not subscribed by the decedent; (b) that he could neither read nor write except for the writing of his name and certain simple words which he had learned, and that he did not know the contents of the codicils or publish or acknowledge them in the presence of witnesses; (c) that he did not sign his will in the presence of alleged witnesses or acknowledge to them that the signature to the will was his or that it was made by his authority; (d) that said witnesses did not sign the will in the presence of the decedent or in the presence of each other; second, that the signature of the decedent to the purported will and to the last codicil “if the same was signed by decedent” was procured by undue influence and fraudulent representations made by Wilson; third, that the decedent was not of sound and disposing mind at the time he executed the first and second codicils but “on the contrary, he was ... at the point of dissolution and in such extreme condition of mental and physical weakness that he was not capable of making or undertaking to make a will or codicil to will.”

When the case was called, the court excused the jury before any evidence was taken and then proceeded to hear the preliminary proof as to the validity and proper execution of the three documents and, finding that a prima facie showing had been made, thereupon recalled the jury for the purpose of hearing evidence upon the contest. At the conclusion of contestant’s case, upon motion of counsel for the respondent, a nonsuit was granted upon each and all of the alleged grounds of contest, the court finding “that no substantial evidence or any evidence had been introduced by the contestant upon any of the alleged grounds of contest in her amended contest of probate of will.” The court ordered that all three of the instruments offered be admitted to probate.

Appellant in her opening brief states that “in the trial court appellant contended (1) that the testator was acting under undue influence at the time of the execution of the will and codicils thereto, and (2) that at the aforesaid times the testator was mentally incompetent to dispose of his estate by will. Henceforth appellant’s attack will be concentrated upon ground (1) above, to-wit, undue influence.” No serious contention is made that the testator was mentally incompetent at any time or that there was any defect in the execution of his will or codicils. The entire argument is devoted to an effort to prove that he was acting under undue influence when he undertook to dispose of his estate. There is no specification in the amended contest, upon which this case went to trial, of any undue influence exerted upon the testator in connection with the execution of his will and first codicil, all the allegations concerning undue influence being contained in the second grdund of contest and confined to the activities of the proponent and his son-in-law and agent, Joseph E. Brewer, at or about the time the second codicil was executed. These allegations charged “that almost immediately after the marriage of the said Contestant to the said decedent, GRIFFIN WALTER WILSON and his son-in-law, JOSEPH E. BREWER, commenced to poison and prejudice the mind of decedent against Contestant, telling him that Contestant married the decedent for his .money and property only, and that Contestant was only interested in his money and not in

In his answer, the proponent Wilson, whose wife had passed away, denied all the above mentioned allegations but admitted the truth of certain other allegations in the following language, “proponent admits that decedent had known proponent for many years, to-wit, about forty years, and that decedent’s relations with proponent had been of a very friendly nature, and that decedent had worked for proponent, and that said parties had been in business together and that decedent placed great reliance upon the statements, representations and wishes of proponent. Proponent also admits that contestant was married to said-decedent in September, 1938, and that at that time decedent was 85 years of age and contestant was 34 years of age.”

The evidence showed that the date of the marriage was September 19, 1938, approximately 10 years later than the

The appellant argues that the evidence which she produced at the hearing was sufficient to place upon proponent the burden of showing that the will (presumably meaning the second codicil) was not induced by his undue influence. In answer to this, the respondent asserts that under the rule as it is mentioned in many of our California cases, including Estate of Higgins (1909), 156 Cal. 257 , 261, 262 [ 104 P. 6 ] ; Estate of Baird (1917), 176 Cal. 381 , 384 [ 168 P. 561 ]; Estate of Relph (1923), 192 Cal. 451 , 465 [ 221 P. 361 ], such burden would fall upon him only if the evidence showed that while holding a confidential relationship toward the decedent, he participated actively in procuring the execution of a testamentary instrument providing undue profit for him. He does not concede that a confidential relationship existed between himself and Mr. King, and denies that he participated actively in procuring the execution of the will or either of the two codicils. He also denies that he profited unduly by the will or codicils.

It is our opinion that he held a confidential relationship toward Mr. King over a long period of years and up to the time of his death. It appears from the evidence that he first met Mr. King 35 or 40 years ago when he hired him as a carpenter; that at a later date, approximately 1923, when King was over 70 years of age, he returned to California from a trip to some other part of the country and stayed in the Wilson home as a guest of Mr. and Mrs. Wilson for several weeks, during which time he tried unsuccessfully to get a job. Mr. King was then an old man and some of his fingers were missing. Referring to the transcript, we find the following testimony of Mr. Wilson, called under section 2055, Code Civ. Proc.: “I started him in the building business, agreed to take care of him, look after him in business affairs, take care of him in sickness and in health, and to see that he had a good, Christian burial, and I bought the lot he wanted I should buy,- and buried him there. I did not consult his wife because I had that agreement with him, with the pledge exacted from me, that I would attend to this. It was stated

We pass now to a consideration of the second point urged by the appellant and denied by the respondent, namely that the will and the second codicil were procured by active participation of the beneficiary. To prove such participation,

As to the will, appellant notes that Brewer, Wilson’s son-in-law, was one of the witnesses and calls attention to the fact that the attorney who prepared that will and also witnessed it, Mr. Douglas Fawcett, had offices with Mr. Irsfeld, who, on a prior occasion, had acted for Mr. Wilson in regard to some minor legal matters. It appeared from Wilson’s testimony that on that occasion he took Mr. King to Mr. Irsfeld’s office upon learning that he wanted to draw a will. It does not appear that on that occasion Wilson was present at any discussion concerning the terms of the will.

As to the second codicil, the testimony was to the effect that King told Wilson that he wished to draw a codicil and that Wilson then “accompanied” him to Mr. Irsfeld’s office. What became of Wilson after he arrived with King at the Irsfeld office does not appear, but there is no testimony that he was present when the terms of the codicil were discussed or that he had any knowledge of its terms. Mr. James B. Irsfeld, Jr. witnessed the execution of the codicil and testified, “My father read the original will and this codicil to Mr. King, and asked him if that was his intention, to execute this codicil to that will, and he said it was.” Miss Jean Gordon, the other witness to the codicil, was asked, “Was Mr. Wilson present?” and answered, “No, Mr. Wilson was not even in the office that day at all. Q. And did you hear this will read to Mr. King? A. Mr. Irsfeld, Sr. read it to him.” Appellant, in her brief, states “We have already seen that Mr. Wilson did not permit Mrs. King to accompany Mr. King at the drawing of the codicil, stating ‘No, where we are going we do not want women along. ’ ” We believe she is mistaken in applying that remark to the occasion when the second codicil was executed. According to the record, Mr. Brewer had left a note, dated “Sunday,” for Mr. King to “Come over Monday morning 9 or 10 o’clock regarding refund on tax bill. Has to be signed before a notary. Joe”,

We find nothing in this record to indicate that either Wilson or Brewer participated actively in procuring the execution of the will or the second codicil. It seems appropriate, since in this ease the court granted a nonsuit on the issue of undue influence, to quote the language of the Supreme Court in another ease upholding similar action. In the Estate of Arnold (1940), 16 Cal.2d 573 , 581 [ 107 P.2d 25 ], it is said: “Conceding, simply for the purpose of argument, that a confidential relation was proved to have existed between Mrs. Logan and Arnold, proof of that fact alone did not cast the burden of proof upon her that the will was not obtained by her through undue influence. (Estate of Purcell, 164 Cal. 300 , 303 [ 128 P. 932 ].) In that case it was held that proof of a confidential relationship did not bring into play a presumption of undue influence in the absence of evidence that the beneficiary suggested the terms of the will. In the Estate of Baird, 176 Cal. 381 , 384 [ 168 P. 561 ], we find the applicable rule stated in the following concise language: ‘As suggested in The Estate of Higgins, 156 Cal. [257] 261, [104 P. [6]8], a “presumption of undue influence” arises from proof of the exercise [existence] of a confidential relation between .the testator and such beneficiary, “coupled with activity on the part of the latter in the preparation of the will.” The confidential relation alone is not sufficient. There must be activity on the part of the beneficiary in the matter of the preparation of the will.’

“In an unbroken line of decisions of this court, the above statement of law has been approved. (Estate of Anderson, 185 Cal. 700 , 716 [ 198 P. 407 ]; Estate of Ricks, 160 Cal. 450 , 461 [ 117 P. 532 ]; Estate of Relph, 192 Cal. 451 , 465 [ 221 P. 361 ] ; Estate of Lances, 216 Cal. 397 [ 14 P.2d 768 ]; Estate of Lavinburg, 161 Cal. 536 , 540 [ 119 P. 915 ]; Estate of Presho, 196 Cal. 639 , 651 [ 238 P. 944 ], See, also, 28 R.C.L. 146.)

“As the evidence of contestant failed to show any activity

Since the evidence in the instant case disclosed no activity on the part of the beneficiary or his agent in the preparation of the will, there is lacking one of the essential elements tending to cast upon the beneficiary the burden of proving that no undue influence was exerted upon the mind of Mr. King at the time he executed the second codicil. That being so, we are called upon to consider whether, on the plaintiff’s presentation of the case, there was any evidence which warranted the submission of the case to the jury. In the Estate of Arnold, supra, the court quotes, at page 576 from an opinion written by the late Mr. Justice Langdon in the Estate of Flood, 217 Cal. 763 , 768 [ 21 P.2d 579 ], as follows: “ ‘It has become the established law of this State that the power of the Court to direct a verdict is absolutely the same as the power of the Court to grant a nonsuit. A nonsuit or a 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 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”.’ ” In the light of this rule, we have considered the multitude of details appearing in the transcript upon which appellant bases her claim that at the time the second codicil was executed, Mr. King was so unduly influenced as to prevent him from making provision for her “in accordance with the statements and promises made to her at the time of her marriage.” The contestant’s recital regarding these promises is vague, as will be seen from the following: “Q. Now, during this period of time that you have described [a few weeks prior to the marriage], did you ever discuss with Mr. King anything about his property or what he intended to do with his property? ... A. ... in my first talk with Mr. King . . . Mr. King went on to tell me that day that he had these

If the foregoing recital can be said to indicate a promise to bequeath various parcels of land to the future Mrs. King, the jury certainly had no information as to what those parcels were. There was a discussion at the trial concerning a declaration which Mr. King made on April 6, 1939, in which he stated, ‘‘During the past fifteen years, I, HENRY H. KING, have transferred to Griffin W. Wilson, Pearl E. Wilson, his wife, and Joseph E. Brewer and Kathaleen M. Brewer, his wife, certain properties as hereinafter described. Said transfers were made for a valuable consideration and with the intention that the properties transferred should belong to the respective transferees as their own properties; the consideration for said transfers was the agreement of the transferees to look after me and see that I was well cared for as long as I lived and to bury me when I died. I have been associated with Griffin W. Wilson for over forty years; he has always, during that time, looked after me. I am making this declaration so there can never be any question as to my intention in making said transfers and in order that the ownership of the properties transferred may not be questioned by anyone who might claim through me after my death.” Then followed a description of 5 parcels of land, located in the Town of Newhall, transferred to Joseph E. Brewer or to Joseph E. Brewer' and Kathaleen M. Brewer, husband and wife; also a description of 4 parcels, transferred to Griffin W. Wilson and Pearl E. Wilson, husband and wife, as joint tenants, 3 of these parcels being located in Newhall and the other in the City of San Fernando. The last mentioned parcel consisted of the northeasterly 90 feet of Lot II and all of Lots 12 and 13 of Tract 5830, which it will

We are left in the dark, and so was the jury, as to whether any of the parcels mentioned in the declaration which Mr. King executed were the properties which he showed her at or about the time of their first meeting and which he said “he could leave to anyone.” The evidence showed that at the time Mrs. King first met King he was just completing a house at Newhall and that immediately thereafter he started building another on the lot in San Fernando which Mrs. King selected as the place where she would like to live with him.

We have quoted at length from the transcript at this point in order to point out not only that there was a discussion between Mr. King and his wife-to-be concerning property which he claimed to own, but also to show that he was not in a position, as matters then stood, to convey the real estate either by deed or by will; it had all been transferred to Brewer or Wilson in accordance with the trust agreement which had existed between them and Mr. King for a long period of years. There is no evidence in the record to indicate that the proponent ever failed, either personally or by his agent, in carrying out the terms of that trust. All the evidence is the other way. To be sure, there is some indication in the testimony which we have quoted that King had discussed with Wilson and Brewer some adjustment of their affairs, by which, possibly on an accounting, he might be recognized as possessor of one or more parcels of real estate, but such discussion if it ever took place brought no tangible results, unless the San Fernando lot may be so considered, for, according to Mrs. King, her husband told her that the only thing they would “let me do was to fix up the property

The statement of Mrs. King of her husband’s vacillation between “the Hollywood folks” and herself as his beneficiaries was confirmed by a note produced by the respondent in cross-examination, which Mrs. King had written to a next door neighbor at San Fernando, where she had been living, or we might say “camping,” for approximately a month and immediately following her marriage. This note reads as follows: “November 7, 1938. My dear Mrs. Charles: Don’t bother to return the bread. I had a hard time getting the carpenter back on the job after you were here this morning. He was white and shaky and said every time you come onto the place he gets so nervous he can hardly work the rest of the day. He practically told me yesterday that everything is going to Brewers and Wilsons so all I’ll get out of this-embarrassing mess is what he can do from now on and he’s promised me a home and promised to take care of me and if I get him to keep on I’ll do well. Please try to understand and if he doesn’t put in your walk when he finishes building on the other side of you, I’ll see that you get the equivalent. Now, that’s a promise in writing. He promised you that walk and he owes it to you. Like a lot of things he promises me today, and forgets tomorrow. I’m used to keeping my promises. Please try to understand, Mumsy, Gratefully, Gladys.” While Mr. King is not mentioned personally in this note, he is referred to as the “carpenter” and at that time, certainly, he had no intention to depart from the plan which he had outlined years before, as evidenced by his will and first codicil, as well as by his working harmoniously and satisfactorily with both Brewer and Wilson for a period of approximately ten years after the will was written.

It cannot be questioned that Wilson took occasion to state his personal views on the marriage both to Mrs. King and to Mr. King. He testified, “I had a little heart to heart talk with Mrs. King, and I told her that she would find that she didn’t marry an angel, she married a hard headed, hard working old Irishman, and that if she would just ‘rub the fur the right way’ she could get anything that was right from Uncle George; but when she crossed him and interfered with his affairs, things might not go quite as well.” He also testified, “I don’t doubt in the least at this time that I told

It is contended that these and similar incidents, some of which occurred long after the testamentary act of November 28, 1938, make a case precluding the court from ordering a nonsuit, having in mind the conditions under which such action might be taken as stated in the Estate of Flood, supra, 217 Cal. 763 , but we have in mind the following: “In an action to set aside a will of a deceased person on the ground of undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testator’s free agency and substitute for his own another person’s will. (Estate of

In re Kaufman (1897), 117 Cal. 288 , 295 [ 49 P. 192 , 59 Am.St.Rep. 179 ], quotes the court as saying in Eckert v. Flowery, 43 Pa.St. 46 , “ ‘Unless there was some evidence tending legitimately to prove that some fraud had been practiced upon the testatrix at that time, or that some misrepresentation had- then been made, or that some physical or moral coercion had been employed, such as to destroy her free agency, the court erred in submitting to the jury the question whether undue influence had been exerted. It was inviting them to find as a fact that of which there was no evidence, and which the law as well as reason presumed had no existence. ’ ” No such error could be charged to the trial judge in the instant case, for he was governed by the principle expressed in the following language: ‘‘Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will, and must amount to coercion destroying free agency on the part of the testator. (Estate of Keegan, 139 Cal. 123 , 127 [ 72 P. 828 ].) It is further held that mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient. (Estate of Easton, 140 Cal.App. 367 , 371 [ 35 P.2d 614 ].) ” (Estate of Arnold (1940), 16 Cal.2d 573 , 577 [ 107 P.2d 25 ].)

The comment of the court on the claimed undue influence, consisting of the alleged domination and control of beneficiaries under the will of Mrs. Purcell, in the Estate of Purcell (1912), 164 Cal. 300 , 302 [ 128 P. 932 ], is pertinent in our consideration of the present case. ‘ ‘ The most that can be said of the evidence on this branch of the case is that it shows that they had the opportunity to exercise undue influ

Judgment and order affirmed.

Shinn, J., and Wood (Parker), J., concurred.

A petition for a rehearing was denied April 18, 1944, and appellant’s petition for. a hearing by the Supreme Court was denied May 18, 1944.