Estate of Flatau

LANGDON, J.

This is an appeal from an order of the trial court in a will contest directing a verdict for respondent, proponent of the will. The contest was filed by an adopted daughter of decedent, and was based upon allegations of incompetency and undue influence.

In 1897, while living in Ohio, decedent Edward S. Flatau and his wife, respondent Celia Flatau, adopted contestant Gladys Flatau, who was then three years old. In 1914 she married Lionel Levy in Toledo, Ohio. Having accumulated sufficient funds, decedent retired from business in about 1925, when he came to California with his wife. He continued thereafter to look after his investments and engaged in other normal activities. In 1933 he took a trip to Ohio, and in Toledo engaged his attorneys to draw a will for him, in which his adopted daughter was not mentioned. In September, 1935, decedent consulted with respondent Jacob Flatau, his brother, with reference to the drawing of a new will, and the latter took decedent’s old will to his attorney, who prepared several drafts during the next few months. On December 22, 1935, decedent was taken to the hospital, suffering from a leg ailment involving the possible necessity of amputation. The brother was called to the hospital, and saw decedent that evening and the following day. On the afternoon of December 24th, the final draft of the will was read to decedent in the presence of two doctors, and after approval, was subscribed by them and by an attending nurse. Shortly thereafter decedent went to the operating room. He was unable to recover from the operation and died five days later.

The will named Jacob Flatau, the brother, executor to serve with bond, and gave him an undivided one-sixth interest in fee of one-half of decedent’s real property in Ohio, subject to a prior life estate. The rest of the estate went to the widow and others, excluding contestant, his adopted daughter,

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who was disinherited by an express provision leaving her one dollar. The only major change which the 1935 will made in the disposition of property under the 1933 instrument was in the provision for the brother, and in neither was any estate given to contestant.

Upon the trial of the contest, the court directed a verdict for the proponents and admitted the will to probate, granting letters testamentary to Jacob Flatau. In our opinion this order was proper, for there is no substantial evidence to support the alleged grounds of contest.