Lepori v. Sherman

NOURSE, P. J.

A contest before probate of the last will of Constantine Lepori was heard by the court sitting without a jury. The contestant is a granddaughter of the deceased, a minor of five years of age, and the only surviving lineal heir. The proponents are nephews and nieces of the deceased. The grounds of the contest were the alleged undue influence of these relatives, particularly Mary Sherman, and the alleged incompetency of the deceased. The trial court found against contestant on both issues, and the only question raised on this appeal is the sufficiency of the evidence to support these findings.

The testator was about seventy-five years of age at the time the will was executed. He had been actively engaged in

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business in Pittsburg, Contra Costa County, and had accumulated a fortune estimated above $500,000 in 1929. He died on January 31, 1932, and the appraised value of his estate at that time was $143,000 with an indebtedness of about $60,000. A large part of the estate was in shares of the Transamerica Corporation, which was of fluctuating value during this period. In September, 1929, when the deceased estimated his estate at a high value because of the almost fabulous value placed on this stock, he executed a will in which he made a number of large specific bequests and left the residue in trust to pay certain annuities and to pay for the support and education of the contestant, the

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to go to her when she reached the age of forty. In this will the testator made ample provision for the mother of contestant, the daughter-in-law of the testator, so that she could maintain herself comfortably during "contestant’s minority and properly care for her education and training.

After the execution of this will the testator became very ill and was under medical care with the aid of a special male nurse and of his daughter-in-law until August, 1931, when he went to live with his niece, Mary Sherman, at her home in Napa County. From this time until his death Mary Sherman took complete charge of the deceased. She discharged his male nurse and employed her mother-in-law in his place. She wrote his letters and assumed complete control of his business affairs, dictating the sale of properties, the collection of accounts, and the extension and settlement of loans and mortgages. Testator’s business was handled through an employee of a bank in Pittsburg, who held a general power of attorney from the deceased. During all this time the deceased was becoming continually weaker mentally and physically so that Mary Sherman, on numerous occasions, wrote to this agent that the deceased was not in condition to discuss matters of business, which, for that reason, these two assumed to settle for themselves. In December, 1931, Mary Sherman wrote to this agent stating that her uncle wished to execute a new will and inclosing memoranda for that purpose. The agent, an employee of the American Trust Company branch at Pittsburg, forwarded the memoranda to the head office- with a request that a will be prepared eliminating the granddaughter as residuary legatee and substituting Mary Sherman, her sisters