Pulliam v. Bank of America National Trust & Savings Ass'n

PLUMMER, J.

This cause is before us for the second time on an appeal prosecuted by the contestants based upon the ground of alleged undue influence in the making of the will executed by the deceased on the 12th day of April, 1933.

Upon the institution of this action three grounds of contest were alleged: Lack of execution of the will; undue influence; and unsoundness of mind. The trial court granted a non-suit as to the alleged non-execution of the will, and also, as to the allegation of undue influence. The cause was submitted to the jury on the alleged ground of unsoundness of mind. The jury found in favor of the contestants, and upon appeal this court held that there was no evidence to support the verdict of the jury, and that the testimony introduced in the cause overwhelmingly established the mental capacity of the testatrix to execute a will.

The opinion filed by this court upon the first appeal is reported in

Estate of

Short, 7 Cal. App. (2d) 512 [47 Pac. (2d) 555], The facts involved in the case are all summarized in the opinion heretofore filed, and for the sake of brevity, are referred to and made a part of this opinion for a statement of the testimony introduced upon the trial.

The will executed by the deceased left the property in trust which was valued at the sum of approximately $18,000, to the Bank of America National Trust and Savings Association, with directions to use both the income and the principal for the care and maintenance of Mary E. Jaspar, the mother of the deceased. At the time of the execution of the will Mary E. Jaspar was of the age of about eighty-six years, and was both physically and mentally enfeebled, and as the testimony shows, incompetent to take care of herself. The will then further provided that the residue, if any, should go to Laura Treadway, a close friend of the deceased.

A

resume

of the testimony which we have set out in the opinion heretofore filed, in the Matter of the Estate of Short, shows that the testatrix had in mind the care and protection of her mother, and that some provision, such as leaving the property in trust, should be made in order that her mother might be well protected during the remainder of her life.

Mrs. Jaspar died during the pendency of this action, a fact, of course, which the testatrix could not have had in mind