Herbert v. Lankershim (1937) · DecisionDepot

Herbert v. Lankershim

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 23, 1937 No. L. A. 15762Published

Before: Seawell

SEAWELL, J.

J. B. Lankershim, commonly known as Colonel Lankershim, a resident of the city and county of Los Angeles, state of California, died testate on October 16, 1931, at the city of Brooklyn, state of New York. He left a large and valuable estate. J. Wiseman Macdonald and Bank of America National Trust and Savings Association

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were appointed special administrators, with general powers as to the management of Ms estate.

By paragraph IV, count one, of the complaint, denominated “Complaint—Money on Contract”, plaintiff alleges:

“That during the lifetime of said decedent and on the 10th day of October, 1927, said deceased J. B. Lankershim at and in the city of Los Angeles ... in consideration of and on account of services rendered by plaintiff to and for J. B. Lankershim at his special instance and request,' at divers times and occasions between January 4, 1924, and January 1, 1928, as a companion to him and in reading to Mm, administering to his wants; caring for his welfare; preparing food, meals and delicacies for him; attending to and caring for his wearing apparel and linen; aiding and assisting him in dressing and undressing and other activities of life; protecting him from artful and designing persons; consoling and sympathizing with him in times of worry, anxiety, displeasure and disappointment; nursing and administering to him in times of sickness and ill health; preparing and administering medicines and other treatment as directed by physicians or desired by him and otherwise caring for and administering to his comfort, contentment, welfare, happiness and pleasure, made executed and delivered a certain instrument in writing,” which is marked “Exhibit 1”, of which the accompanying photoprint is a facsimile.

(See reproduction on page 418.)

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in New York city for some three years past and came specially to Los Angeles to testify in the case. She was engaged in the advertising business in New York. She said that she first met Colonel Lankershim in 1908 at the Lankershim Hotel, in Los Angeles. She was intimately friendly with him and the acquaintanceship continued until 1928 or 1929, which was the last time she saw him. She had known Mrs. Herbert eighteen or nineteen years. She first met her at her home at Great .Neck, Long Island. She introduced the colonel to Mrs. Herbert either before Christmas day in 1923 or soon after New Year’s day, 1924, at the Biltmore Hotel, Los Angeles. She left soon afterwards but returned about Christmas time in 1924. During a time when Mrs. Herbert and the colonel were visiting at her home in Hollywood, Miss Blood said that the colonel asked her if she knew that he had made Mrs. Herbert his companion. She replied that she had not known this, and the colonel said the very fine cooking that she had done in her apartment had made him realize that he had been living in hotels and not getting the right kind of food. He had been interested in getting his health in better condition. The witness said she then asked Mrs. Herbert how it seemed to be drawing a salary. She said she was not drawing a salary. Miss Blood then said: “Well, if I were a companion to anyone I would certainly want to draw a salary for my work.” The colonel said “likely that I would, meaning me, but that he would pay Mrs. Herbert" in his own time and in his own way. I told him I thought it was rather an unbusinesslike procedure.” There is no evidence that Mrs. Herbert ivas a cook or ever was so engaged or that she was ever engaged as a nurse. Miss Blood, her close intimate friend, never knew her to be so engaged. The evidence points in an opposite direction. The colonel at all times stayed at hotels well supplied with bellboys, housemaids, valets, chefs and such other attaches as first-class hotels afford, and with the best there was of culinary art for the comfort and convenience of their guests. The fact that the colonel preferred first-class hostelries to the private home cooking of which it is said he was so fond is proved by the fact that, except for the few weeks he was at the Engstrum, where all relations with Mrs. Herbert ended, he made his home at the Biltmore Hotel, where every modern convenience of living and service was at his beck and call. There is no evidence to justify an

She said she and the colonel often walked from the Biltmore to Mrs. Herbert’s apartments at the Bngstrum and had dinner at Mrs. Herbert’s apartments. She met him in Paris in 1926 and had lunch with him several times, and he expressed a regret that he had not taken Mrs. Herbert to Paris with him. (This was while he was on one of the regular annual trips he made to Paris to visit his wife, who was in ill health, and his daughter. He annually spent from four to seven months in Paris with them.) She testified that he expressed regret that he had not taken Mrs. Herbert with him to Europe as he was extremely lonely and had no one to go with him to the different restaurants and theaters. She noticed an unclean condition of his vest and tie and called his attention to his untidiness and he said: “If Irene was here this would not have happened. I have been so dependent on her care. Sometimes I am careless. ’ ’ She took him to her sitting room and removed the spots. She met him in New York in 1927. Mrs. Herbert came with him and she met them upon their arrival. He was then on his way to Paris to visit his wife and daughter. Mrs. Herbert-stopped at New York, where Miss Blood was then living. Miss Blood next saw the colonel in August or the first of September at the Engstrum where Mrs. Herbert was living. The witness left shortly for New York and did not see him again until her return to Los Angeles in the latter part of February or first week in March, 1928. She met him in the galeria of the Biltmore and had luncheon with him. He told her that Mrs. Herbert was no longer with him. The witness expressed surprise and the colonel asked her if she had not known it and she replied in the negative and asked him why it was. He told her that his attorneys had felt that “it was best that he have a man companion or attendant”. The witness said it was too bad, as she had been with him during all these years. “I asked him what he had done, how much he paid her, Mrs. Herbert, for all the years of service, whether he had paid her and he said he had. I asked him how much he had paid her, how much he had given her. He said he had not given her money. I said, ‘Well, that is rather amazing. What did you dot’ He said, ‘I have given her a note for services rendered’, when he could easily give her money. He said he liked to do things in his own way. He always was not in a position from the curiosity of people surrounding him to do things as he wanted

his laundry and his linen. She massaged his neck and feet. He complained of cold feet. When he ate his breakfast in his room he would sit on the edge of the bed, dressed in his robe. He took a nap nearly every afternoon. Before they left for Palm Springs the witness was alone with him while Mrs. Herbert was shopping. They discussed Mrs. Herbert. Her testimony was that Mrs. Herbert was “so considerate of him, that he never had to ask her to do anything, that she thought of it before he even asked her ’ ’. He did not know how he could do without her; that his recent trip to Europe was a failure, and that he did not enjoy it because he didn’t have anyone to take care of him. He said he was not paying her but he was going to pay her for what she had done. The witness said that during the few days they were there—from the second to the sixth of October—Mrs. Herbert washed his linen and brushed his clothes and did the cooking and housework. They did not take many things. The colonel took a bag. She said “he always wore two or three pairs of stockings; she used to put those on for him and his shoes; and every time he would get up she would run to help him for fear he might need something—which I don’t think he did—but she was just considerate of him”. He complained of his legs hurting him when he walked, and he took baths at the Indian spring. Dr. Poster (who had been his masseur during many years) took him to the spring. Dr. Poster arrived at Palm Springs by automobile two days before the colonel and the witness left. Dr. Poster took Mrs. Herbert into town and he and Mrs. Herbert left the same night by automobile. The witness then described a walk which she took with the colonel, during which he unveiled his secret thoughts and purposes to her, an acquaintance of less than two months duration. While taking this walk, she said the colonel confided to her that he was lonesome without Mrs. Herbert. He told her that she had been so good to protect him from people who had designs on him. Her exact words were: “He said ‘so many girls and their mothers were trying to get money from him with different schemes for movies, and Mrs. Herbert would not let any of them talk to him.’ He said ‘she had been so thoughtful and considerate and had protected him from everything of that nature, you know, designing persons is what I mean.’ He said ‘she had given him more care than his own people and she was more considerate than his own

children were and he was going to pay her for it.’ ” The witness replied that “would be fine”. He did not say how much she was to receive nor when he was going to pay her. The witness said she helped him with his shoes, fixed his tie, helped to put on his coat and brushed his clothing that evening, as she had seen Mrs. Herbert do; that she and the colonel took the train the next day and arrived at Los Angeles in the afternoon and went to the Bngstrum in a taxi. The witness remained overnight, and the next day, October 8, 1927, she went to Compton, her home, and went back to Mrs. Herbert’s apartment at the Bngstrum in the afternoon of October 10th, the day the instrument is claimed to have been executed. She had a conversation with the colonel upon entering, in the presence of Mrs. Herbert. The colonel was smiling when she came in and he said: “ ‘I told you I was going to pay Mrs. Herbert,’ and I said, ‘You did, colonel.’ He said, ‘I have given her a note for a half-million dollars, payable a month after my death.' He said, ‘I don’t want you to mention this to anyone, Miss Allen’—he called me Ruth. I said, ‘I won’t.’ He said, ‘I wouldn’t tell you, but I can depend on you not to tell this where people will discuss it.’ ” He did not say why he did not want it discussed. Mrs. Herbert did not say anything; just smiled. The witness said that she was at Mrs. Herbert’s apartment on another occasion when the colonel came in for tea. He was a great tea drinker. Miss Allen stayed a number of nights with Mrs. Herbert. The colonel went back to the Biltmore in October after he returned from Palm Springs. She believed the colonel said that he moved back to the Biltmore because the doctor and his attorney wanted him to move. That once, after he moved away, she, Mrs. Herbert and the colonel went to the Orpheum. She could not fix the date but placed it subsequent to 1927. The colonel always used taxis when she rode with him. At meals he frequently dropped food on his clothing.

She was sworn, however, as a witness in her own behalf and testified that she was then forty-three years of age and knew Colonel Lankershim in his lifetime. At this point an objection to her testifying on statutory grounds was made and overruled. She was shown the disputed document and identified it as the one set forth in the pleadings. She also testified that she presented a claim on the instrument for the sum of $500,000 and that it had not been paid. The witness said she read the prepared claim before she presented it but she did not know whether she verified the complaint or not. Her counsel offered to stipulate that she did, but opposing counsel refused to accept the stipulation, stating that he preferred to have the witness testify on the subject. The above was the extent of her testimony in chief. She was recalled at the close of defendants’ case on rebuttal. The experts had testified that the paper upon which the note was written had been folded before Mrs. Herbert wrote any part of the body of the instrument. This, it was contended, was made physically manifest by ink penetrations and spreading of ink as the pen crossed the crease made by the fold. No expert who testified on the subject had any doubt as to the physical fact. Miss McKee had early testified that the note was perfectly flat and had not been folded when she handled it. Clark Sellers testified that shortly before the trial day and at a time when the experts were making scientific tests of the genuineness of the document in the offices of plaintiff’s counsel, Lieutenant of Police H. C. Nutt, Mrs. Herbert and Miss McKee being present, plaintiff was asked by Clark Sellers if the fold which extended from the top to the bottom of the document was on the document when she wrote it and she said the document was flat, unfolded, and she folded it and put the crease in it after she had written the body of the document. Lieutenant H. C. Nutt, supervisor of the crime investigation laboratory and a specialist in the investigation of questioned documents, who was at the time examining the document, corroborated Clark Sellers. He further added that Mrs. Herbert, after stating that the note was flat and smooth when the colonel, handed it to her, declared that he admonished her to “take good care of this note because it was valuable”. She further said: “I placed

Belle Allen and Frank Allen, all but one being companions of Mrs. Herbert, to establish as genuine a spurious claim against said J. B. Lankershim’s estate and set about to devise a plan of sharing in his estate; that in consummating said plan it was necessary that it be done secretly and in such fashion that the evidentiary facts upon which said parties were to rely should be confined to the knowledge only of the parties themselves, thereby rendering it impossible to impeach the testimony of any one of them by direct evidence, Colonel Lankershim being dead. It is argued that the only way by which plaintiff and those who acted in concert with her could succeed in their design was to adopt a plan whereby payment of the claim would be deferred until after death. It is further argued with great force that the normal, usual and businesslike way in which men dispose of large fortunes is by will, by trust arrangement, or at least by adopting some method which would place the stamp of verity upon their acts, and if not so conforming to testamentary rules and prescribed forms of law, they at least would safeguard their ante-mortem wishes with suitable barriers to withstand anticipated attack. Colonel Lankershim took the precaution to make a will in which he made no provision that plaintiff should share in his estate. Neither did he establish a trust fund or make any provision for the immediate payment of any sum by check or order. Any of said methods would have furnished some substantial evidence in support of the authenticity of his act. Neither Colonel Lankershim’s legal and business adviser and business associate, who was one of the executors of his estate, nor his daughter, son or confidential secretaries have any knowledge of the note transaction. Miss McKee testified that the colonel told Mrs. Herbert to deposit the note in a bank; that it was very valuable. Instead, she testified she carried it loosely placed in her purse, and passport folder for more than four years. Miss McKee said that the colonel instructed Mrs. Herbert to take the note to J. Wiseman Macdonald after his death and he would see that it was paid. Miss Blood also testified that the colonel, in recounting to her what he had done for Mrs. Herbert, said it would be “one of the real regrets of his life that he would not be here to see Mr. Macdonald’s face when he saw the note”. This occurred in February, 1928, at the time the colonel had been sharply taken to task by Miss Blood for not

who had downtown flats. The letters forming his words are frequently unconnected and stand alone. The alignment is fairly good. The other two letters, one mailed at Vichy July 19, 1927, and the other mailed from Paris July 28, 1927, are in typewriting and bear the colonel’s signature, the surname being divided into three sections. Said letters have to do principally with his return to Los Angeles, and make references to the weather, his health, with directions as to his address, and greetings to friends generally, with special mention of Miss Blood. A number of checks collected by plaintiff were introduced bearing the colonel’s signature before and after October 10, 1927. Some of the signatures are on the ruled lines and are well written, while others indicate a hand not sufficiently guided by good eyesight. One instance of poor vision is evidenced by a check dated October 20, 1927, ten days after the transaction in question. The only letters at all legible in his signature are “ J. B.” The upper part of the loop in the letter “L” is discernible, but one not familiar with the circumstances would be wholly unable to reconstruct his or any signature. Evidently the ink had ceased to flow from his pen and his eyes were unable to tell him that his pen was not registering. A few broken and incomplete ink lines which follow immediately indicate that the eyesight had failed and by force of habit of many years he had gone through the arm motion of writing his name. Three cheeks bearing his name and dated October 10, 1927, are in evidence. One for $33.50 payable to American Radium Products Co. is so greatly superior in execution as to distinguish it from his other signatures. The second shows a failure of the ink to register in places and -the third which is made payable to the Engstrum Apartments in the sum of $214.88 is typical of other signatures already discussed. His secretaries say that wherever his name appears signed in the proper place on any note, check, bill or instrument subsequent to 1925, either his hand was directed by another or it so happened by accident. The testimony of his theater and moving picture guests to the effect that he said he “had to be seated” in the second or third row leaves no doubt as to seriously impaired vision. The testimony of Miss McKee, Dr. Poster and others is that Mrs. Herbert or whoever was with him, took his arm to guide his steps when he was on the street.

Ivy C. Clark, husband of Mrs. Isabel H. Clark and stepfather of Ruth Belle Allen and Frank D. Allen, first met Mrs. Herbert at the Biltmore in 1926. He testified that he first met. Colonel Lankershim in 1926, also at the Biltmore, when he was ill. His stepson, Frank Allen, was insistent that he and his mother go up and meet the colonel, so they decided to go up, and took some flowers. He met Mrs. Herbert at that time, and on a number of occasions thereafter. During the latter part of August or the first part of September he received a telephone call from Mrs. Herbert and in response to it he and Mrs. Clark called at the Biltmore. Mrs. Blood was there but the colonel was not present. When the colonel came in he ordered lunch brought to the room. After lunch another lady came in who said she was an old friend of the colonel and she was interested in something the colonel had brought from Europe. This lady and the colonel went into another room to view some exhibits, and while they were out something was said about the colonel making a nuncupative will. He (Clark) stated that Mrs. Herbert said she and Mrs. Blood had been to New York and made a contact with an attorney who said that if three persons would testify to the fact' that the colonel said he was going to leave Mrs. Herbert a certain amount, it would be legal. The witness said he questioned the proposition but Mrs. Herbert said it was so. The witness then said to her if he was going to make her the recipient of this estate, why not have him go down to his attorney and have him make a will and sign it, properly drawn up. She said, “That is the idea, but I cannot get the old devil to do it. ’ ’ Then the witness said,"That is all right. If that is the will of the colonel there is no reason why he (Clark) should not say it.” The colonel then came in and Mrs. Blood said, "Colonel, it looks as if it were getting about time you were going to fix up what you were going to leave Irene.” He said, “There is plenty of time. I will take it up with my attorney. ’ ’ Prior to this time Mrs. Herbert had often said when visiting the witness’s home that the colonel had promised to leave her something; there was no stipulated amount. When she went to the Biltmore he (Clark) was invited to lunch. The colonel had returned from Europe and Mrs. Herbert said he wanted to see him and his wife. Someone had said they talked to a lawyer about the colonel making a will. The witness said he had been a preacher in his

Mrs. Mary C. Hawkins was the switch-board operator and clerk at the Engstrum Apartments in 1927. Her duties were bookkeeping, attending to the wants of the guests, seeing them as they came in and went out, and taking care of their business. Everyone who came in or went out passed by her. Mrs. Herbert came to the Engstrum Apartments in the middle of August, 1927. She occupied a room on the first floor. Colonel Lankershim came about September 1, 1927, and occupied a double apartment on the fourth floor. The day after he came, Mrs. Herbert moved to a room directly opposite the colonel's. She stayed there until the middle of October and said she wanted to be moved away from that apartment. She was changed to the second floor and stayed there until the colonel moved out, which was about the first of November. All items of Mrs. Herbert’s rent were charged to and paid by Colonel Lankershim. When she testified that Mrs. Herbert asked that she be transferred from her room opposite Colonel Lankershim’s, she was asked by counsel for appellant this question: “Did she say why?” An objection was made to the question on the ground that it was irrelevant, incompetent, immaterial and hearsay. Counsel for appellants then made an offer of proof that, if the witness had been permitted to answer, her answer would have been as follows: “Mrs. Herbert, on October 15, 1927 came to me at the desk and said she would have to make a change, that the colonel was coming into her room in his bathrobe and embarrassing her before her guests and annoying her at all times and she could not stand it any longer and that she wanted to be removed away and wanted a room in another part of the building.” The court sustained the objection, both as to the question and offer of proof. This ruling was prejudicial error. In the first place, it was a declaration against the whole theory of plaintiff's case and it was admissible as impeachment of the testimony as to the kind and sympathetic feelings which plaintiff had for the colonel. This was but five days after the tenth of October transaction is claimed to have taken place. It was entirely proper for the jury to take into consideration, if they believed the witness, whether it was at all probable that Mrs. Herbert would have made such a statement had she in fact been made the recent recipient of a $500,000

because she was not with him; that she had done more for him during their four years of acquaintance than anybody in the world, including the members of his own family, thereby forcing the inference that Mrs. Herbert had risen to a higher place in his esteem through the kind of association and attention described by the evidence than any other person whom he had ever known, and that he had been influenced by some strange conceit to acknowledge her over wife, daughter and son. This is hardly the part that one would be expected to take who, by her own averments, had been employed to "console and sympathize” with her employer “in times of worry and anxiety”, and “to protect from artful and designing persons” at all times. The written words which came directly from the decedent at the precise period when Miss Blood and others say he expressed to them a higher esteem for Mrs. Herbert than he did for his wife and children offer a protest to the unnatural imputations of said witnesses testifying on behalf of the employed sympathizer and protector, whose duty it was to promote contentment and happiness in the colonel’s life and to permit nothing to disturb or mar the high regard and serene confidence that was essential for the peace of mind and happiness of the head of a family. Her office was, according to her averments, that of promoter of happiness and contentment, as well as a protector against intrigue and designing persons. The fact that he spent by choice practically one-half of each year on pilgrimages in visiting' his wife and daughter and that the portions of the other half could have afforded but little opportunity for association with Mrs. Herbert, in accordance with much uncontradicted evidence, tends to refute the claim that the company of Mrs. Herbert was the first consideration of his life, or that she could have devoted as much time to his comfort and happiness as the testimony of said persons sought to establish. Testimony coming from one’s own written declarations is entitled to more serious consideration than is evidence of a secondary or hearsay character as to what a person, since dead, said in life. No written line is to be found, except in the questioned instrument itself, in which the decedent gave any expression to the state of mind which the several witnesses say he revealed orally to them. The few letters he wrote to the plaintiff do not support the claim. They are brief and formal and have to do with com

monplace matters, and refer principally to his preparation for his return journey to Los Angeles. The fact that he did go to Europe without the company, of the plaintiff, and continued to do so in 1928, 1929, 1930, and 1931 with Dr. Foster as his companion, and the further fact that the plaintiff moved from her room directly opposite to his to a different floor, and the significant fact that the colonel left the Engstrum Apartments a few days after October 10, 1927, and the close personal relations claimed to have theretofore existed became severed from that time forward, which is also true as to every one of the coterie who testified in her behalf, are wholly incompatible with the relation of benefactor and benefactress. After October 10, 1927, those who claimed to have been deeply concerned in his welfare seemed, for some reason, to have lost interest in him. Some never again saw him, although he lived four years thereafter. There is no doubt that Mrs. Herbert was, as were her lady companions, a frequent theater and dinner guest of his and that she partook of his hospitality in large measure and in turn made herself agreeable to him. By her creditor’s claim, however, and the testimony of Miss Blood and other companions, it is contended she was in his employ in some capacity, her exact duties not being clearly defined. No serious claim is made that she was his nurse, and, conceding that she did all that is claimed, the service does not by any means assume the character of hourly, daily, weekly or monthly employment, and at the most it was spread over a period of two years. No person connected with the Biltmore Hotel, where he lived when in the state during the full period covered by this inquiry, and who should have been able to support plaintiff’s claim of service, the burden being upon her, was called upon to testify in her behalf, and such evidence as was given on the subject would exclude her from the role of an employee of a servile or domestic type. Her bills at the Engstrum, at the Biltmore, for theater tickets, dinners, automobile and taxi transportation ; expenses to Vancouver, New York, Palm Springs, and every place where she or her friends accompanied the colonel, and every known charge, were paid by him. Certain portions of her diary were admitted in evidence and the entries made by her with respect to the Vancouver trip showed beyond question that she traveled as a first-class passenger and performed no services that would reduce her to the rank

The only evidence introduced by plaintiff is that given by persons who unquestionably were active participants in an effort, through a long period of time, to induce the decedent by means shown by the record to make the plaintiff a beneficiary of his estate. That such was the purpose is too plain to require argument. He was actually taken to task by Adele Blood Hope on at least one occasion for having failed to comply with her suggestion made to him as to what she thought was a suitable provision for him to make for plaintiff. Every means that was thought likely to accomplish that end was brought to bear upon decedent. That there was concert of action on the part of plaintiff and her companions is all but admitted by them. The pressure was intensely applied beginning with the New York trip and was increased by the subsequent Vancouver and Palm Springs trips and finally spent its force at the Engstrum Apartments on October 10, 1927, or shortly thereafter, when the parting of the ways followed whatever transaction took place on that day. The story of a transaction involving the transfer by said instrument to the enrichment of the plaintiff in the sum of $500,000, in the circumstances related by plaintiff and her witnesses, not only strains the credulity of those expected to accept it, but it would seem to bring into serious question the normal mental condition of a former successful business man who engaged in such a transaction. The contention that the decedent had no independent advice in the matter, especially during the few weeks immediately prior to the transaction, when he was under the surveillance of Mrs. Herbert and her companions at the Engstrum, is rendered probable by plaintiff’s witnesses, Miss McKee and Miss Blood. The colonel advised Mrs. Herbert, as he delivered the note to her, to deposit it in the bank, and, after his death, to take it to Mr. Macdonald and he would see that it was paid. Mr. Macdonald had no knowledge of the note until after the colonel’s death. Miss Blood testified that the colonel said to her that his only regret was that he would not be able to see Mr. Macdonald’s face when the note would come to his attention.

The testimony of the only person who claimed to have witnessed the transaction is to the effect that the instrument was the product of one continuous writing operation. This testimony is weakened by the physical facts which appear on the face of the note. It does not require the assistance of an expert to discern them. In addition to the physical facts already pointed out, and which tend to nullify Miss McKee’s testimony in material respects, the fifth cipher in “$500,000” is out of line with the third and fourth ciphers, and it is relatively smaller and was evidently blotted. The inserted words ‘ ‘ One month ’ ’ were also evidently blotted. The letter “h” intersects the letter “e” in the word “hundred” just above it. No blotter was used to absorb the ink after writing the word “hundred”. The only words or figures which show the use of a blotter at all are “one month” and the fifth cipher. The “after death” clause rendered the note nonnegotiable and therefore postponed an investigation as to its genuineness until after the death of Colonel Lankershim. If a blotter had been used at the time the body of the instrument was written, absorption would have shown in the words adjoining and immediately above and in close proximity to the blotted words. On the contrary, all other writing shows quite black and heavy. If the writing was a continuous process, the ink must have been wet in “hundred” when the blotted words were written and, if so, the extension of the letter “h” into the letter “e” would have produced the usual effect of blurring or running together of the ink. Instead, the letter “e” has the appearance of having been completely dried at the time the letter “h”, from underneath, intersected said letter “e”. The written words “thousand dollars” have a decided variance in slant of letters from the letters in the preceding words, showing a different writing position. Features upon the face of the instrument give the appearance of alterations made after its execution, noticeably the forcing out of line of the word “me” to avoid writing into the letter “ J”.

By No. 11 (a) the jury was told that a confidential relation does not in and of itself raise any presumption of fraud or undue influence unless it is also established by a preponderance of the evidence that such confidential relation was actually used to obtain an unfair advantage. By instruction No. 11 (b) the jury was told that the proof of undue influence must be substantial to the effect that pressure was used which overpowered the volition of the party upon whom it operated, and that it must amount to more than a suspicion. No. 13 merely mentioned “undue influence” in a negative way and did not purport to throw any light on the law applicable to confidential relations. This covers every reference made to the subject of confidential relations, and no sufficient instruction was given on the subject of gross inadequacy of consideration. These two major defenses, therefore, were not adequately called to the consideration of the jury. The defendants stressed both issues by a number of instructions which were rejected. By instructions No. 3 and No. 11, given at plaintiff’s request, the jury was told that the burden of proving undue influence by a preponderance was upon the defendants. The general rule is that the burden is on the party who introduces affirmative matter. The instructions, however, -made no exception as to the burden shifting to the trustee to show that the transaction was fair, free from fraud or undue influence, if a confidential relation is shown to exist and the transaction as to the confiding party was inequitable and the consideration was grossly inadequate. It is conceded that plaintiff wrote the entire instrument, except the signature, which she seeks by her action to enforce. The line of authorities is unbroken to the effect that where a confidential relation exists and one of the parties to the relationship has shown great activity in procuring the execution of the instrument by which he or she greatly benefits by the transaction, the activity of such person becomes an important factor for the court or jury to consider in determining whether the transaction was free from undue influence. If such relations are found to exist the burden of showing that no undue advantage was taken shifts to the other side

Instruction No. 72 is more comprehensive and reads: “The law defines a confidential relation as any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent. A fiduciary relation in law is ordinarily synonymous with a confidential relation. It is also founded upon the trust or confidence reposed by one person in the integrity and fidelity of another, and likewise precludes the idea of profit or advantage resulting from the dealings of the parties and the person in whom the confidence is reposed. If, therefore, from all the evidence in this case, you find that the relations between Colonel J. B. Lankershim and the plaintiff were such that Colonel Lankershim reposed confidence in the integrity or fidelity of plaintiff, and relied upon plaintiff in the transaction involved, and that plaintiff voluntarily accepted or assumed to accept such confidence, then you must find that a confidential relation existed between Colonel J. B. Lankershim and plaintiff. Where such a confidential relation exists, the law views with strictness the business dealings of the one in whom the confidence is reposed to show that the other party to the relation acted voluntarily with a full knowledge of all the facts and that the transaction was fair and just. If, therefore, you find from all the facts of this case that a confidential relation did in fact exist between Colonel J. B. Lankershim and the plaintiff at the time of the execution and delivery of the document here sued upon (if it was executed and delivered) the burden is upon plaintiff of showing that the transaction was fair and just and fully understood and consented to by Colonel J. B. Lankershim, and unless you find that plaintiff has shown the transaction to have been of this character, your verdict must be for the defendants.”

Herbert v. Lankershim

SEAWELL, J.

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