Thagard v. Tribbey

DORAN, J.

This appeal is taken from an order granting a motion to set aside the verdict of the jury and for a new trial in the contest of a will. The motion in question was granted upon the ground of insufficiency of the evidence to justify the verdict. Following are the facts as stated by appellant.

Joseph Tribbey died on or about the 15th day of September, 1940, at Los Angeles, California. He left surviving him as heirs at law a widow, Lillian May Tribbey, respondent herein, and an adult daughter, Esther Tribbey Thagard, the contestant. At the time of his death he was 60 years of age, or thereabouts. On the 23rd of September, his widow petitioned for probate of a purported holographic will of the decedent. Said will was dated September 9, 1940, which was six days before the death of the testator. By this will the testator left his daughter, the contestant, the sum of $1.00. Testator then stated in the will that, “I leave all of my earthly belongings, including everything I own, both personal and property I own, to my wife, Lillian May Tribbey.” On the 21st day of October, 1940, the will was admitted to probate and letters of administration with the will annexed were issued to the widow, Lillian May Tribbey, who qualified the 21st day of October, 1940. Thereafter and within six months a petition for revocation of probate of the will was filed, on April 18, 1941, by the contestant, Esther Tribbey Thagard.

The first trial of the action resulted in disagreement of the jury, which was thereupon discharged, and the case was again set for trial. The second trial commenced March 18, 1942, was concluded March 23, 1942, and a verdict was returned by the jury on that date wherein the jury made its finding that the will in question was procured by the undue influence of the proponent, Lillian May Tribbey, widow of

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deceased. Thereafter and within the time allowed by law proponent moved for a new trial and the court made its order herein appealed from, granting proponent’s motion.

According to the evidence, as stated by appellant, the testator, Joseph Tribbey, was at the Hollywood Race Track in the middle of July, 1940, which was less than two months before his death, with John R. Land. He met Kermit Crown-over there and Mr. Crownover rode home, in the back seat of Mr. Tribbey’s automobile, driven by Mr. Land. Mr. Tribbey told Mr. Land that Mrs. Tribbey, the proponent and respondent herein, had been after him to make his will, and that he “wasn’t feeling good and didn’t expect to live long.” He said he didn't want to do that (presumably, make a will). Mr. Tribbey further stated on that occasion that his wife wanted him to make a will leaving everything to her and he didn’t want to cut his daughter off. Mr. Tribbey told Mr. Land in the presence of Mr. Crownover that his wife had been trying for quite some time to get him to make a will and cut his daughter off, and he didn’t want to do it.