Page images
PDF
EPUB

the new writ, if issued at all, must be made returnable before the Supreme Court in banc, where alone rests an authority superior to that of the District Court of Appeal, and where alone its decisions can with any propriety be corrected or reviewed.

Entertaining these views, I very reluctantly issued the writ in this case, making it returnable before myself, but upon an understanding with counsel for petitioner that, unless the court would consent to hear the matter, the proceeding would necessarily be dismissed. My associates having, upon due consideration of the matter declined to order a hearing of the petition before the whole court, the writ was discharged, and the prisoner remanded.

(6 Cal. App. 52)

(Civ. 343.)

FAIRCHILD v. WHITMORE.
(Court of Appeal, First District, California.
June 25, 1907. Rehearing Denied by
Supreme Court Aug. 23, 1907.)
ATTORNEY AND CLIENT-CLAIM FOR COMPEN-
SATION EVIDENCE.

Defendant, seeking to defeat a claim of an attorney for services on the theory that the services were rendered for a corporation, may show in evidence that the attorney had filed claim for the services rendered against the corporation, which was insolvent.

Appeal from Superior Court, Alameda County; S. P. Hall, Judge.

Action by C. H. Fairchild against Welles Whitmore. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Welles Whitmore and M. C. Chapman, for appellant. William P. Hubbard, for respondent.

KERRIGAN, J. This is an action brought to recover upon a promissory note. The defendant in his answer admitted the execution of the note, and set up in defense a counterclaim for services performed as an attorney and counselor at law. The jury brought in a verdict for the plaintiff, upon which judgment was entered. This appeal is from the judgment and order denying de fendant's motion for a new trial.

It is claimed that the trial court erroneously admitted in evidence a certified copy of the claim of the defendant presented to the referee in the matter of the Richards Pump Company, an insolvent debtor. Among other items of services contained in this claim is the following: "Also services and preparation of papers in removal of two directors of said company" (Richards Pump Company). The appellant supported by his own testimony all the items of his bill of particulars, except one, which reads: "Feb. 5, 1904, assisting Wm. P. Hubbard in removing John J. Meyers and C. H. Humphreys as directors of the Richards Pump Company, and electing C. H. Fairchild and H. J. Piersol in their place, $50." This bill of particulars

itself, however, was offered and read in evidence. The claim was admitted to meet this item of the bill of particulars, and to show that the appellant for this service had presented a claim against the insolvent corporation. It was respondent's theory that the services of appellant, for which the latter sought, by his counterclaim, to recover compensation, were rendered not for him, but for the Richards Pump Company, insolvent. This claim against that insolvent company. so far as that item was concerned, carried out this theory, and was clearly admissible.

It is also asserted that the court erred in overruling the objection of appellant to the testimony of C. H. Humphreys. This witness was an attorney at law. In answer to a hypothetical question he testified as to the value of the services rendered by appellant. This and other instances, in which it is claimed the trial court erred in admitting evidence, are without merit. The evidence was amply sufficient to support the verdict.

The bill of exceptions was originally settled upon stipulation of counsel by the judge before whom the case was tried. Subsequently, upon motion under section 473, Code Civ. Proc., an amendment to the engrossed bill of exceptions was allowed and settled by the successor of the judge who presided at the trial. The judge who heard the cause was not requested to settle the amendment. It is the contention of the appellant that, until he was requested to do so and refused, his successor was without authority in the matter, and that the amendment must be disregarded. Code Civ. Proc. § 653. It is needless to pass on this question, for we have carefully examined the points discussed in the briefs without reference to the amendment, and from such examination we are satisfied that the judgment and order should be affirmed. It is so ordered.

[blocks in formation]

(6 Cal. App. 44) (Civ. 323.)

In re WELCH'S WILL. (Court of Appeal, First District, California. June 24, 1907. Rehearing Denied July 24, 1907; Denied by Supreme Court Aug. 23, 1907.)

1. WILLS-CONTEST-MOTION FOR NONSUIT. In determining the question of the sufficiency of the evidence of contestant in a will contest to require the submission of the case to the jury, the court must concede to the jury the right, not only to regard all the testimony of contestant as true, but to draw all reasonable inferences therefrom, and, where the evidence so considered is susceptible of two constructions, contestant is entitled to have the case go to the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, §§ 769, 773.]

2. SAME-UNDUE INFLuence.

Undue influence to avoid a will is the use, by one in whom a confidence is reposed by another, of such confidence for the purpose of obtaining an unfair advantage of the weakness

of the mind of the latter or of his necessities or distress.

able inference fairly deducible, and every favorable presumption fairly arising, from

[Ed. Note.-For cases in point, see Cent. Dig. the evidence produced, must be considered vol. 49, Wills, §§ 375, 383.]

3. SAME CONFIDENTIAL RELATIONS.

In a suit to set aside a will on the ground of undue influence exercised by the wife of the testator, the confidential relation between husband and wife, though not raising a presumption of undue influence, is important in weighing the evidence in the case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 383.]

4. SAME-EVIDENCE-QUESTION FOR JURY.

In a suit to set aside a will on the ground of undue influence, evidence examined, and held to require the submission to the jury of the question of undue influence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, § 769.]

as facts proved in favor of the contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true, and. if contradictory evidence has been given, it must be disregarded. If there is any substantial evidence tending to prove in favor of contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on the merits." With the above rule in mind, we will briefly

Appeal from Superior Court, Santa Cruz examine the evidence tending to prove that County; Lucas F. Smith, Judge.

Petition by Mary Ellen Aston for the revocation of the probate of the will of Richard R. Welch, deceased, in which Bridget Welch, the widow, appeared and filed anFrom a judgment of nonsuit, petitioner appeals. Reversed.

H. C. Wyckoff, for appellant. Charles B. Younger, Jr., and David F. Maher, for respondent.

COOPER, P. J. The last will of deceased was admitted to probate, and Bridget Welch, the widow, appointed executrix thereof. The appellant, Mary Ellen Aston, the daughter of the deceased and the executrix, within the year filed a petition for the revocation of the probate of the will upon the ground of undue influence. The respondent, who is the mother of appellant, filed an answer to the petition, denying the allegations as to undue influence. The case came on for trial upon such issue before the court with a jury. After appellant had introduced her testimony and rested, respondent made a motion for a nonsuit, which was granted, and judgment accordingly entered. The appeal is from the judgment, and presents the question as to the ruling on the nonsuit.

The case presented is entirely different from one in which the lower court has granted a new trial on conflicting or insufficient evidence. Here the jury was a part of the machinery of the trial. It was, in the first place, subject to the revisory power of the court, the judge of the facts. The evidence introduced must, for the purposes of this motion, be all considered as true. It must be given the greatest probative force to which, according to the law of evidence, it is fairly entitled. We must concede to the jury the right, not only to regard all the testimony as absolutely true, but to draw all reasonable inferences therefrom. In Estate of Arnold, 147 Cal. 583, 82 Pac. 252, the rule is thus stated: "In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases. Every favor91 P.-22

the will was procured by undue influence, or, in other words, that it was not the free and voluntary act of the deceased.

Undue influence has been defined by our court to be the use, by one in whom a confidence is reposed by another, who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage of his weakness of mind, or of his necessities or distress. Dolliver v. Dolliver, 94 Cal. 646, 30 Pac. 4. It must be borne in mind that the undue influence is alleged to have been by the wife, and the relation between husband and wife is confidential. While such confidential relation does not, perhaps, of itself, in this state raise a presumption of undue influence in regard to making a will, yet it is important in weighing the evidence in all cases of this character. In fact, it has been held in some jurisdictions that there is a presumption of undue influence in such cases when such confidential relations exist. The question as to the boundary of legitimate influence must be determined by consideration of the relation between the parties, the character, strength, and condition of each of them, the circumstances of the case, and the application of sound practical sense to the facts of each given case. The mental and physical condition of the testator, and the provisions of the will itself, may be considered. The deceased was 70 years old, and during the last few years of his life was in the habit of using intoxicating liquors at times to excess. He had been in feeble health for some time. The respondent appears to have been the stronger of the two, either mentally or by force of her will power. She took charge of the money of the community, deposited it in banks in ber own name, and superintended the affairs generally. The appellant was the only living child, and there were no grandchildren. She married Joseph F. Aston in December, 1882, and has ever since lived with him, but they have no children. The mother opposed the marriage of her daughter to Aston, would not consent to it, and stated that, if she married Aston, he would never get any of the property. She

never forgave the daughter for marrying Aston. The deceased was always friendly with his daughter, and often visited her at her home. The will gives the property-quite a little estate-to the respondent for life, making her executrix without bonds, with remainder to appellant for life, and, in case of her death without issue, "all of my said property shall go to the heirs of my said beloved wife." Deceased did not know his wife's relatives, who they were, nor where they resided. The appellant testified that during their married life and up to the time of her father's death her mother controlled him in everything; that her mother insisted upon, and her father did, turn over all the money he earned and all rents to her; that her mother told him what to do and how to do it; that some four or five years before his death he sold some property in Santa Cruz for about $2,400, and her mother deposited the money in the Pajaro Valley Bank in her name; that on an occasion when visiting her father, and when her father was kissing her, the mother told her that she came too often; that her mother would always be present when she visited her father; that her father had blood relations living; and that two of his nephews visited him at his home in Watsonville. The witness Romine, who was a tenant of deceased, testified that, when he paid his rent. the respondent would reach over and take it, and on one occasion she grabbed the money from deceased; that respondent would always direct how the work should be done on the place; that deceased asked the witness at one time when deceased sat down to rest not to mention it to respondent; that on one occasion, when deceased borrowed $3 of witness, he asked him not to mention it to respondent. The witness McCallum testified that a short time before the death of deceased the respondent told witness that she was very anxious that her husband should make his will, and in the same conversation the respondent said she did not wish Mr. Aston to get a dollar. The witness Murphy testified that she was at the Welch home a short time before his death: that Mrs. Welch said he was in a very bad condition, and expressed a desire that he should arrange his business; that in the conversation Mrs. Welch said she wanted control of the property during her life, and then to have it go to her daughter, and then to her people, and used the expression "If it is not that way, I will not have it;" that on one occasion deceased came into the home of witness, and asked for a pen and ink, stating that he wanted to sign a note for a saloon bill, but did not want his wife to know about it.

Respondent was called as a witness for appellant, and testified that deceased never saw any of her relations, and that none of them ever visited at her home. When asked if she was present when the will was signed,

she answered, "I certainly was when that will was signed." When asked by her own attorney (Mr. Maher) in cross-examination to state what occurred at the time of making the will, the respondent answered: "You drew the will out and he signed it; after he signed you read, it twice to him, and he asked me, Are you satisfied with the will, mamma?' When respondent was asked if she knew beforehand what was going to be put in th will, she said she never heard that he was going to make a will till three hours before. "I was as innocent as a child in the cradle, he said when Mr. Maher read it." When asked if she suggested leaving the property to her relatives, she answered, "Oh, no, no, no; I never spoke to him about them." If deceased never saw any of his wife's relatives, and she never spoke to him about them, or about making the will, it might have appeared to the jury a little singular that the fee of the property should be left to her relatives. The will was made three days before the death of the deceased. The witness Mary Aston testified that the deceased and respondent stopped at her place of business in the afternoo after the will had been made, and respondent told witness about the will having been made and "he had it fixed to suit her."

The witness Faustino testified that Mr. and Mrs. Welch stopped at his store about 5 o'clock in the afternoon of the day the will was drawn; that deceased came up to the counter, put his elbow on the counter, and laid his head on his hand, and witness gave him a little wine; that Mrs. Welch told witness about the will having been made, and said, "I got the will just the way I wanted it."

The appellant testified that she was at the home of her parents on the evening of January 27th, just after the will had been made; that nothing was said to her about a will in any way that she heard a part of an expression made by her mother to her father which was "don't tell"; that she did not hear of the making of the will until after the death of her father, which occurred January 30, 1904.

About three weeks before his death the testator had a serious attack of neuralgia of the heart, and could not put on his shoes without assistance. No disinterested party appears to have been present when the will was executed. Deceased does not appear to have had any but the most affectionate feeling for his daughter. While feeble and near dissolution, lie went with the respondent to the lawyer's office, and was with her and in her presence when the will was executed. Who can say as matter of law that the ac was the free and voluntary act of deceased under the circumstances? When the respondent said that the will was as she desired. might not the jury infer and find from all the evidence that it was in fact the will of respondent, acting through the signature of a feeble, dying old man? In a case like thi

where a will is made by one in feeble health. just before death, in the hearing and presence of a person of dominating mind, and to suit the interests and purposes of such person, courts and juries should carefully scrutinize every act and circumstance in connection with the matter. In many cases it is utterly impossible to prove the exercise of the influence directly upon the testamentary act, but this is not necessary. The question in all cases is as to whether or not such influence produced the act. It may have been the result of a long course of conduct, fear, or persuasion. A party exerting such influence would not take along witnesses to prove that she had no such influence. Such influence has been exerted in many cases where the party whose influence produced the act was not present at the making of the will. The fact that such a party was present, both in going to, remaining in, and returning from the lawyer's office. is certainly a very potent circumstance.

In Estate of Arnold, supra, the order granting a nonsuit in a will contest was reversed, although the facts and circumstances tending to show undue influence were not of a convincing nature. The court said: "There were circumstances from which it might have been inferred that Leonard had, by these means, obtained great control over the mind and actions of the testatrix, and that he was acting in bad faith. for the purpose of procuring the new will to be made in order to supplant Rosenheim and promote his own advantage. Some of the evidence, it is true, was capable of a different construction, and there was little, if any, direct evidence as to the motives of Leonard, or as to the actual operation of the undue influence. a jury had, upon the evidence given, found in favor of the disputed will, we might not be disposed to disturb the verdict. Questions involving motives, and inferences to be deduced from circumstances, are, within reasonable bounds, exclusively within the province of the jury, or the trial court when sitting without a jury, and, under the rules regarding the granting of a nonsuit, they must all be resolved so far as possible in favor of contestants. It would not be unreasonable to conclude upon all the facts and evidence before the jury that the will in question was not the natural result of the uncontrolled will of Mrs. Arnold, but the direct result of the fears exerted, false beliefs engendered, and sinister influences exercised over her to that end by William H. Leonard. In such case it is error to grant a nonsuit." It certainly would not be unreasonable to conclude, upon all the facts and circumstances before the jury in this case, that the will was not the natural result of the uncontrolled mind of the old man Welch. In Estate of Tibbetts, 137 Cal. 123, 69 Pac. 978, the verdict of a jury, finding that the will of deceased was the result of undue influence, was up

held. In that case the mother of the testatrix was unfriendly to the contestant, and went with her daughter, the testatrix, to have the will signed, but gave no directions as to its terms at the time. The court said: "After mature consideration of the case at bar we have reached the conclusion that the evidence was not so entirely insufficient to support the finding of undue influence as to warrant us in disturbing the verdict." In Estate of Kendrick, 130 Cal. 360, 62 Pac. 605, it was held that the evidence was sufficient to uphold the verdict of the jury that the will was procured by undue influence. The evidence did not show that the influence was exerted at the very time of the making of the will, but that whispered conversations. had occurred between the deceased and her niece. The court, after referring to the facts, and the fact that at the conclusion of the conversations the deceased seemed to have put herself unreservedly in the hands of her niece, and to have been dominated by her, said: "These facts and circumstances, taken with the admittedly mental and physical condition of the testatrix, we think must be held sufficient to justify the verdict of the jury."

In the case at bar the facts that the deceased was feeble, and somewhat addicted to the use of intoxicating liquor; that he was dominated by the respondent; that he made his will just three days before he died; that respondent was with him at the time and the will was made in her favor; that respondent said to third parties that she had the will to suit her; that deceased left the fee of the real estate to his wife's relatives, whom he did not know and had never seen, to the exclusion not only of his own relatives but to the exclusion of his only daughter; that respondent entertained a strong dislike to the husband of the daughter; that deceased had always been friendly to the daughter and her husband; that the daughter was not spoken to about the will, and respondent desired to keep the fact of its having been made from the daughter-in our opinion would amply sustain a verdict finding that the will was produced by undue influence. The judgment is reversed.

We concur: HALL, J.; KERRIGAN, J.

(6 Cal. App. 67) GABLE et al. v. PAGE et al. (Civ. 324.) (Court of Appeal, Second District, California. June 26, 1907. Rehearing Denied by Supreme Court Aug. 23, 1907.)

1. APPEAL-TIME OF TAKING.

An appeal from a judgment taken 10 months after entry thereof cannot be considered. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1879.]

2. JUDGMENT-RES JUDICATA.

The validity of the trust cannot be questioned by defendants in an action to quiet title

to laud held by plaintiff under a trust established in a prior action brought by one to whom defendants are privies.

Appeal from Superior Court, Tulare County; W. B. Wallace, Judge.

Action by Mary A. Gable, trustee, and others, against Elias C. Page and others. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. Dismissed and affirmed.

E. T. Cosper, for appellants. T. E. Clark, for respondents.

SHAW, J. This is an action to quiet plaintiff's title to lands which she holds under a trust established by a final judgment and decree rendered several years prior to the institution of this suit. The appeal from the judgment herein was taken 10 months after the entry thereof; hence cannot be considered. Hunter v. Milam, 133 Cal. 601, 65 Pac. 1079.

It is not urged that any errors of law occurred at the trial to which exception was taken, nor are the findings attacked as being unsupported by the evidence. Appellants' argument is confined to an attack upon the validity of the trust, the existence of which it is conceded was found and adjudged by the court. Admitting its establishment by this adjudication, the point becomes one of law to be considered upon an appeal from the judgment only. Hunter v. Milam, supra; Sharp v. Bowie, 142 Cal. 462, 76 Pac. 62. Thus considered the grounds upon which it is claimed the trust is void might properly have been, and presumably were, urged in the suit wherein it was made an issue. The court there having, by its decree, established it, appellants, who are privies to the plaintiff in that action, must be held bound by such judgment. "The judgment may be grossly unjust or erroneous, but the decision of the court as to all issues involved in the action stands as a finality between the parties and their privies until set aside in some mode recognized by law." Page v. Garver (Cal.) 90 Pac. 481.

The appeal from the judgment is dismissed, and the order denying appellants' motion for a new trial is affirmed.

[blocks in formation]

individual indebtedness may, in the absence of a plea of nonjoinder by defendant, be supported by evidence of a partnership indebtedness, defendant being one of the partners.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 39, Pleading, § 1237.]

Appeal from Superior Court, City and County of San Francisco; J. C. B. Hebbard, Judge.

Action by Baker & Hamilton against G. W. Lambert. From a judgment for defendant and an order denying a new trial, plaintiff appeals. Reversed.

Page, McCutchen & Knight, for appellant. William H. Johnson, for respondent.

COOPER, P. J. This is an appeal from a judgment in favor of defendant, and from an order denying the plaintiff's motion for a new trial.

The complaint contains the common counts, alleging in various forms that the defendant is indebted to the plaintiff in the sum of $575.28 for goods, wares, and merchandise, sold and delivered by plaintiff to defendant at his special instance and request. Upon the trial the evidence showed that a partnership had existed between the defendant and one Lipsett. Plaintiff then offered testimony tending to show a sale of the goods and merchandise to the partnership. The defendant objected to the offered testimony, on the ground that under the pleadings the proof of a partnership indebtedness was inadmissible, and the court sustained the objection.

The question presented for decision is as to whether the allegations of the complaint as to an individual indebtedness can, in the absence of any plea of nonjoinder by defendant, be supported by evidence of a partnership indebtedness; the defendant being one of the partners. The precise question does not appear to have been decided in this state, and is an important one. We are of opinion that the evidence was admissible. The indebtedness was the joint indebtedness of both the partners. The complaint, therefore, should have been against both, as they are united in interest. Code Civ. Proc. § 382. The Code provides (Code Civ. Proc. § 430) that the defendant may demur to the complaint when it appears upon the face thereof that there is defect of parties defendant. It does not appear upon the face of the complaint that there is such defect, and hence the point could not have been raised by demurrer. It is further provided (section 433) that in such case the objection may be taken by answer. Then follows section 434, which provides: "If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same." The defendant, knowing the fact that his partner was not joined, should have raised the ques tion of such nonjoinder by his answer, it he desired to rely upon it. The provisions of the Code in regard to the matter are simple and easily followed. The object is to

« PreviousContinue »