Estate of Peterson

SPENCE, J.

The last will of Mattie S. Peterson was admitted to probate on December 20, 1932, and appellant H. A'. Hardinge was appointed executor. Under the terms of said will, appellant May Spencer, a friend of the deceased, was named as residuary legatee. On June 3, 1933, a contest and petition for revocation of probate of the will was filed by respondents. Four of the respondents were sisters of John August Peterson, the deceased husband of Mrs. Peterson. The remaining six of the respondents were the children of Oscar Peterson, a deceased brother of said John August Peterson. There were three alleged grounds of contest: (1) Unsoundness of mind; (2) undue influence on the part of Mr. and Mrs. Spencer; and (3) fraud on the part of Mr. and Mrs. Spencer. Upon a trial by jury all of said issues were determined in favor of respondents. This appeal is taken from the judgment revoking the probate of said will.

The main contention of appellants is that the evidence was insufficient to sustain the verdict of the jury upon any of the issues submitted to them. We are of the opinion that this contention must be sustained and we shall therefore briefly set forth the salient facts which appear in the record.

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Mattie S. Peterson, deceased, and her husband, John August Peterson, deceased, had lived near Mr. and Mrs. Spencer in Mountain View for about twenty years prior to the death of said John August Peterson on October 17, 1929. After the death of the husband, Mrs. Peterson was taken to the home of one of the respondents in Redwood City where she remained for about three weeks. During that time, and on October 28, 1929, being eleven days after the death of her husband, Mrs. Peterson made what we may term the first will. In that will she left all of her property to the four sisters of her deceased husband. Shortly thereafter and on November 11, 1929, she returned to Mountain View and visited with Mr. and Mrs. Spencer. During her visit, she expressed a desire to have a home of her own stating that she preferred to live alone and to be free to do as she pleased rather than to live with friends or with relatives of her deceased husband. She suggested to Mr. Spencer that she would advance the sum of $1500 for the construction of a three-room cottage on the land of Mr. Spencer with the understanding that she could occupy the same during her lifetime without the payment of rent. This was agreed to by the parties and a written agreement was executed by them in the office of Mr. Hardinge, an attorney at law. The cottage was constructed and thereafter Mrs. Peterson occupied the same for over two years and until the time of her death on August 13, 1932. The evidence shows without contradiction and respondents concede that during all of the time that Mrs. Peterson visited with the Spencers and subsequently occupied the cottage, she was given the best of care and attention by them and particularly during her last illness when she was greatly in need of such care. The evidence further shows without contradiction that Mrs. Crounse was the only one of the ten respondents who ever visited or communicated with Mattie S. Peterson after she went to visit the Spencers and that Mrs. Crounse’s visits were confined to the first few weeks after Mrs. Peterson returned to Mountain View. At the time of her death Mrs. Peterson had not seen or heard from any of respondents for a period of over two and a half years.