Bolander v. Thompson

NOURSE, P. J.

These were actions by the executor of Osborne Tusting’s Last Will and Testament and Osborne Tusting’s son and second wife as Osborne Tusting’s heirs at law to set aside gifts intervivos to defendant. The two cases were consolidated for trial as they involved the same state of facts, the heirs’ suit having been filed prior to the appointment of Bolander as executor. The plaintiffs appeal from judgments for defendant in both cases.

In August, 1939, following an accident to both Osborne and Leona Tusting on Treasure Island, the defendant, Marion Thompson, was hired to take care of Osborne Tusting as a practical nurse. In October, 1939, Osborne Tusting went to stay at a sanitarium and in November, pursuant to Osborne Tusting’s consent, Leona was granted an interlocutory decree of divorce and a property settlement was made. In December, 1939, Osborne Tusting bought a house for $4,500 which he deeded to defendant. During the months of December and January he bought a car which he transferred to defendant; he gave defendant a bill of sale to the household furnishings; he made her a beneficiary of a $1,000 life insurance policy; he opened two joint accounts in his and defendant’s names; and he opened one account in defendant’s name alone. On May 15, 1940, he wandered away from the home in which he was living, and which he had deeded to defendant, and was found three days later in the Alameda estuary.

It is these various gifts which the plaintiffs attack; they point to testimony that prior to defendant’s entrance into the household Leona and Osborne Tusting were happily married, that defendant kept him doped, and that she told him lies about his family. They urge that a confidential relationship was proved between nurse and patient, that therefore a presumption of undue influence arose which shifted the burden of proof to defendant to show that she did not unduly influence the deceased, and that defendant did not carry the burden of proof.

The defendant’s evidence disputes every material fact which the plaintiffs sought to prove. She expressly denied that she

[446]

had kept the deceased under the influence of narcotics, and testified that such medicine as was given the patient was prescribed by the attending physician. In this she was confirmed by the latter. She directs attention to the undisputed evidence that, until a short time before his death, the deceased had taken care of his business in San Francisco, had attended a special meeting of the board of directors at his home in Alameda, and was at all times in full possession of his mental faculties. The defendant denied the charge that she brought about the divorce and points to the testimony given by Mrs. Tusting in the divorce case. That ease was heard before the same trial judge. A complete transcript of her testimony is included in the record here. Her testimony in that case is wholly inconsistent with the claims she now asserts. The defendant further points to the undisputed evidence that Mrs. Tusting secured the divorce upon independent advice, and without influence on the part of this defendant, that she obtained a satisfactory property settlement, and waived all further claims to the estate of her husband.