Estate of Morgan

PEEK, J.

This is an appeal from a judgment denying probate of a will. It is the contention of the proponent-appellant that the findings of undue influence and lack of testamentary capacity are not sustained by the evidence.

The record shows that the testatrix and her husband, William, were residents of La Jolla until his death in 1954. The proponent, Leo, was the son of the testatrix by a prior mar

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riage and the contestant, Eva, was the daughter of Anna and William. Both children resided at the family home until adulthood, Leo until 1917. In 1933 he moved to Stockton where he has resided ever since. Eva who was married in 1932 left her parents’ home at that time and since 1948 has been a resident of San Pablo. In April of 1948, Anna executed a will leaving all of her property to her husband for life with the remainder in equal shares to Leo and Eva. This will was copied by Mrs. ICeele, a friend of long standing, from a former will, the only change being that William was named as executor in place of a bank. Anna suffered a stroke in 1951 from which she never completely recovered. In April of that year she executed a third will. Mrs. Keele testified that at Anna’s request she copied the provisions of the 1948 will, changing it only to the extent that Eva was named as executrix in place of William. During William’s last illness Anna, together with her children, consulted an attorney in San Diego concerning the possibility of a guardianship for William because of their property interests. They were advised that such a proceeding would be unnecessary since the property of Anna and William' was all held in joint tenancy. William’s will left all of his property to Anna for life with the remainder to Eva. Leo was not mentioned. Because Anna’s will had only one subscribing witness, the San Diego attorney asked her if she would desire to execute a new and like will, to which she answered that she would. In accordance with her instructions, an identical will was drafted by the attorney. Following William’s death, Anna decided she would stay with her children in the north and first went to the home of Leo in Stockton. The signature card on her commercial bank account was changed to require the signatures of Leo and Eva as well as her own. She continued to reside with Leo until her death. The day following her arrival in Stockton, Leo took her to an attorney who had represented him several years previously and whom he had known for some time. The attorney testified that their discussion concerned the probate of William’s will and the preparation of another will for Anna. Under the terms of this will Eva was disinherited for the reason that “she is Willed all of the community interest” of William. The will also named Leo as executor. Thereafter the attorney discovered that there was no property of William to pass by will since all was in joint tenancy with Anna, and he so informed her. This identical information had been conveyed to all of them by the attorney