Fuller v. Nelle

STURTEVANT, J.

In an action brought to establish a trust the trial court made findings in favor of the plaintiff and from the judgment entered thereon the defendants have appealed.

On the 2d day of July, 1926, Clifford A. Fuller and Harriet H. Fuller, his wife, agreed to make a mutual will. Before doing so they entered into a contract with their adopted daughter, Frances R. Nelle, one of the defendants, by and under the terms of which they conveyed to the latter certain parcels of property in consideration of the promise made by Mrs. Nelle that she would not thereafter interfere in any respect whatever with the carrying out of the provisions of any transfer her parents might make of their other properties. Having made said written contract with their daughter, Mr. and Mrs. Fuller thereafter made and executed a mutual will. Later, Mr. Fuller died. The mutual will was admitted to probate and his interest in the properties mentioned in said mutual will was, pursuant to the terms of said wiU, distributed to his widow. On the 7th day of April, 1927, Mrs. Fuller executed an holographic will and, a little later, on May 9, 1927, she executed a written revocation of the mutual will. On February 9, 1931, Mrs. Fuller died. After due proceedings had the Superior Court of the State of California, in and for the County of Contra Costa, made an order admitting the holographic will to probate. Thereafter all of the beneficiaries named in the mutual will appeared and filed a contest in which they alleged that the holographic will was not executed by the decedent in the manner or form required by law; but that it was executed as a direct result of duress, menace, fraud and undue influence exercised by Frances R. Nelle. They also alleged the execution of the mutual will, that it had not been revoked, and that under its provisions it was agreed between Mr. and Mrs. Fuller that

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the property of both should not be disposed of by either of them except as therein provided. Continuing they set forth facts which, if true, would have sustained an order revoking the probate of the holographic will and admitting to probate the mutual will. The defendants in this case appeared and answered said petition by alleging that the holographic will was executed in the form required by law; that it tjra not executed by duress, menace, fraud or undue influence exercised by Frances R. Nelle or anyone else. They denied that under the provisions of the mutual will Mr. and Mrs. Fuller agreed in effect or otherwise that the property of both] should not be disposed of by either of them except as therein provided. They also denied that the mutual will was the last will of Mrs. Fuller and alleged affirmatively that said will was revoked on May 9, 1927. To that pleading the ¡beneficiaries under the mutual will filed an answer in whidh they alleged that the purported revocation was a forged instrument and they further alleged that said forged instrument was obtained by the exercise of undue influence by Frances R. Nelle upon the will and mind of Mrs. Fuller. The probate court made findings in favor of these defendants on all of the issues. The pleadings were very broad and the findings with great care found upon every issue made by the pleadings.