Estate Bucher v. Melnik

GOULD, J. pro tem.

This appeal brings before this court for the second time proceedings had in connection with the contest of the will of Ethel Sherwood Bucher, deceased. The former appeal is reported in 48 Cal.App.2d at page 465 [120 P.2d 44].

In the original trial, after granting nonsuit as to four of the five grounds of contest, and after refusing to grant proponent’s motion for a directed verdict as to the sole remaining ground of contest, namely, undue influence, the court submitted that question to the jury, whose verdict was in favor of contestant. To the question, “Was the will of Ethel Sherwood Bucher dated September 16, 1937, procured by undue influence of proponent, Morris Melnik?”, the jurors answered “Yes.” Thereupon proponent moved for judgment, notwithstanding the verdict, a motion which the trial court granted, admitting the contested will to probate and appointing proponent as executor thereof. Contestant appealed, and this court reversed the action of the trial court and directed that judgment be entered in accordance with the verdict of the jury, i. e., that the will be set aside. Such judgment was then duly entered by the trial court in consonance with the mandate of this court.

From that judgment this second appeal is taken. Proponent of the will, who was respondent in the first appeal, is now appellant, and contestant, appellant in the former review, appears now in the role of respondent.

Much space is consumed in the briefs in the present

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appeal with a discussion of the facts of the case and the evidence adduced at the trial. We do not deem it necessary to review these matters nor to discuss controversial evidentiary items upon this appeal, inasmuch as such were quite fully covered in the opinion from the former appeal, and to that opinion we refer for a review of the facts involved.

According to appellant only one point is involved upon this inquiry. The trial court committed reversible error, it is asserted, because it failed to give in its entirety the following instruction:

“A confidential relationship, such as may exist between physician and patient, is not sufficient to raise any presumption of undue influence. There must in addition be proof (a) of activity in the preparation of the will, (b) to his undue profit,