Estate of Becker

California Court of Appeal Jul 25, 1950 No. Civ. 14417Published

Before: Dooling

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Holding. The court held that there was substantial evidence to support the jury's verdict that the decedent lacked testamentary capacity at the time of executing his will, as the jury was entitled to credit medical testimony regarding the decedent's progressive mental deterioration over conflicting lay testimony.

Issues

Whether the evidence was sufficient to support the jury's finding of testamentary incompetency.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury.”

“It is elementary that direct evidence may be disbelieved and contrary circumstantial evidence relied upon to support a verdict or finding.”

“We are satisfied that there is substantial evidence from which the jury could draw the conclusion that on September 10 the decedent had reached this condition.”

DOOLING, J.

Appellant, the widow of decedent George E. Becker, appeals from a judgment following the verdict of a jury denying probate to a will purportedly executed by decedent on September 10, 1947, on the ground of incompetency.

George E. Becker for some time prior to his death was suffering from cancer of the jaw which brought about his death on September 17, 1947. He was attended during his last illness by his son George H. Becker, the contestant, who is a licensed physician. On August 29, 1947, the contestant took his father to an attorney’s office where the father executed a will leaving the contestant his only property, a lot in San Francisco improved with a two-flat dwelling with a life estate in one of the flats reserved to appellant, his wife.

On September 3, 1947, contestant again took his father to the same lawyer’s office where at the father’s direction a new will was drawn directing the sale of the property and the

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division of the proceeds equally between his wife and his son, with provision that the wife might have a lease on the flat in which they were living for a limited period after the testator’s death. This will was executed on September 5 in the lawyer’s office in the presence of one of his associates, the lawyer who drew the will being that day out of town. At the time of its execution a provision for $40 per month rental to be paid by the widow in case she elected to take the lease provided for was inserted at the testator’s suggestion.

On September 10 the will in contest was signed in the decedent’s bedroom, having been drawn by another lawyer who was summoned for the purpose by decedent’s wife through the medium of a neighbor. By its terms all of decedent’s property was given to his wife to the exclusion of his son.

The contestant son, who saw his father daily, morning and evening, except on September 10 when at the suggestion of the wife he did not call in the evening, testified that his father’s condition was one of progressive mental deterioration. Between August 29 when the first will was executed and September 3 when the second visit to the lawyer was made he had bceome noticeably more cloudy and confused and by September 5 when the second will was executed he was, in contestant’s opinion, barely competent and able to understand what he was doing. Thereafter he became progressively worse and by the morning of September 10 in this witness’ opinion:

Estate of Becker

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DOOLING, J.

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