Corbett v. Schubal

BRAY, J.

Petitioner James J. Sehubal appeals from an order denying admission to probate of a document purporting to be the last will of Josephine B. Corbett, deceased, and denying his petition for letters testamentary.

The sole question presented is the sufficiency of the evidence to support the court’s findings of undue influence and mental unsoundness.

Pacts

On April 4, 1951, Josephine B. Corbett, a widow, aged about 67 years, signed the will in question. She died July 28th. Surviving her were three brothers and a sister, all living in Australia. Petitioner is an attorney and had been acting as her attorney since 1946. He was also her friend and business advisor. Her property consisted of her home, apparently worth between $10,000 and $12,000, $875 in United States bonds, $1,095 in cash, and jewelry and furniture. Petitioner had drawn two previous wills for her. The first one, in November, 1950, provided $500 bequests to three of her friends. It had no residuary clause and was never executed. Petitioner testified that she wanted to complete it later by codicil. About January, 1951, she instructed petitioner to draw a new will leaving everything to the Red Cross, and appointing petitioner executor. He thereupon tore up the first will. This second will she destroyed when the will in question here was executed. Petitioner destroyed his copies of both former wills. She went to the hospital for a short

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period. Petitioner visited her there and she told him she wanted to make a new will, to complete the first will she had started. She said she wanted to remember Mrs. Harrs, Mrs. Sward and Constance Diernesse. On her return from the hospital petitioner offered to buy her home from her at whatever price appraisers might fix and to let her live there the rest of her life. He did that to get her to go to Australia to live with her sister. After she returned home she said she wanted to complete her will. Petitioner desired that she put in writing what she wanted so that he could feel sure what he was doing. She gave him a list which included the three persons above mentioned, him and his wife. He told her she did not need to put either his or his wife’s name in the will. She said she wanted it that way. From the list she gave him, petitioner had typed a form of “Codicil To My Last Will and Testament.” Under “San Anselmo, California” a blank line was typed, evidently for a date. It then stated: “It is my wish that the people whose names appear below receive the item, or article appearing opposite their name.” Below this on typewritten blank lines petitioner wrote in the names of the three friends of Mrs. Corbett above mentioned, his wife’s name, and the addresses of each, followed by the figure $500. Then appears “Residue to J. J. Schubal” and “Change of codicil later.” Under the typewritten blank line in the normal signature position, was typed “Josephine B. Corbett” and in petitioner’s handwriting “A.K.A. Jose Corbett.” In spite of the obvious inference to be drawn from the instrument itself, petitioner testified he did not intend Mrs. Corbett to sign it, nor did she. His explanation was: “Well, now, I will tell you. Mrs. Corbett had intended to prepare a codicil—see ? And I told her that in the event we never completed it, she could copy this form, just this way, and put out what she wanted and give it to me and I would put it with the will. That was merely directions for Mrs. Corbett.” He then stated that the list he had received from her was directions for the will, and this was for a codicil to the will. Yet both instruments and the will as drawn contained exactly the same disposition of her estate. Petitioner stated that he explained to her that “Residue to J. J. Schubal” meant that whatever was left would come to him. She then said, “That’s all right, we will leave it that way, and I will make some changes later.” Petitioner explained that “The reason that the will was executed to the extent it was—the reason that the codicil was to follow later,