Greuner v. Wells Fargo Bank & Union Trust Co.

WARD, J.

The sole question presented on this appeal from a judgment of nonsuit is whether or not there was presented sufficient evidence to entitle the contestant Philip Greuner, in a contest to the probate of his father’s will, to the submission to the jury of the issue of undue influence.

The evidence shows that for many years the decedent W. M. Greuner had engaged extensively in the operation of real estate holdings. Decedent resided in friendly relations with his wife and five children. In 1931 he permitted his wife, Louise P. Greuner, to read a will that he had made providing bequests for his wife, children, relatives and numerous other parties. This will had evidently been made four or five years prior to 1931 and at a time when Gruener’s real estate holdings, etc., were worth from five to ten million dollars. In 1932 the estate was probably worth less than two million. On May 24, 1932, Greuner executed a will under the terms of which all of his estate was bequeathed to his wife, with the provision that should the wife predecease him the estate should be divided equally among his children. Respondent herein, Wells Fargo Bank and Union Trust Company, was named executor. Appended to the will is a written election signed by the wife to take under the will and a waiver of her interest in the community property disposed of by the will. In 1934, possessed of three small pieces of property only,

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Greuner died at the age of forty-seven years. The last will was filed for probate and resulted in this contest by the eldest son Philip.

No evidence was introduced supporting the first two grounds of contest, namely, lack of testamentary capacity and that the will had not been properly executed and hence may be disregarded. Supporting the allegation of undue influence exercised by the wife, the following testimony appears : That at the time the will was executed testator’s possessions were dwindling and decedent was greatly worried and distressed. The subscribing witnesses to the will were not called. Respondent contends that, in the absence of any evidence from the attesting witnesses, this court may properly conclude that the judgment of nonsuit was properly granted. The failure to call a subscribing witness to the execution of a will is a circumstance to be considered