Estate of Phillipi

MARKS, J.

This is an appeal from an order granting a motion for new trial on the ground that the special verdict of the jury and the judgment were not supported by the evidence, and were contrary to the evidence, and on the additional ground of errors of law occurring during the trial. The only question argued in the briefs is the sufficiency of the evidence to sustain the verdict and judgment so we will confine ourselves to its consideration.

Lorenzo Phillipi died about August 8, 1943. For a number of years prior thereto, Fred A. Wilson, an attorney at law, had been his attorney and had performed various professional services for him, including the preparation of the will in question here.

On April 23, 1943, Phillipi executed the will in question in which he named Mr. Wilson as executor without bond and bequeathed all of his estate “unto Fred A. Wilson, who may devote the same or such portion thereof to worthy persons, institutions and causes, or distribute the same or any portion thereof to such persons, institutions and causes in such proportions and in such manner as in his judgment exclusively shall insure that my estate will not be dissipated, but on the contrary will be used for worthy purposes.”

The will disinherited the two children of the testator.

Mr. Wilson filed this will with a petition asking its admission to probate and his appointment as executor. The two children filed their contests and a jury returned a special verdict finding that the will had been executed under undue influence exercised by Mr. Wilson. Judgment was entered on the verdict denying probate. The trial judge granted Mr.

[102]

Wilson’s motion for new trial and this appeal followed. Other facts in connection with the case may be found in

Estate of Philippi,

71 Cal.App.2d 127 [161 P.2d 1006].

That Mr. Wilson was the attorney of the testator and) that a confidential relationship existed between them is not questioned. Where such a situation exists the rebuttable presumption of fraud or undue influence arises where the attorney profits from his dealings with his client. That presumption can only be overcome by clear and satisfactory evidence that the transaction between the attorney and his client was fair and equitable and that the attorney had taken no advantage of the relationship and that the client was fully informed as to all matters relative to the transaction.