De Fraga v. Niemeier

STURTEVANT, J.

After the will of the decedent had been admitted to probate two nieces of the decedent filed a contest based on the allegations that the decedent was incompetent when he made his will and that it was obtained by the exercise of undue influence. Lillian L. Niemeier and Maria Motta, legatees named in the will, appeared and answered. The contest was heard before the trial court sitting with a jury. After the contestants had presented their case the trial court granted the motion of the proponents for a

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nonsuit. From the minute order entered thereon the contestants have appealed.

From the briefs of contestants we gather the following facts. The decedent died July 8, 1935, aged eighty-five years. He had never married, and had no occupation. His next of kin and sole heirs at law were his widowed sister, Mary Yelladao Avelar, aged eighty-nine, and his four nieces, Mary Sheldon and Maria Motta, and contestants, Maria Yelladao de Fraga and Evelyn Gertrude Lawrence, incompetent. He left an estate appraised at $35,771.39. Arbitrarily deducting, for debts, expenses of last illness and' funeral, executor's, administrator’s and attorney’s fees, and expenses of administration, $5,771.39, leaves, for simplicity of calculation, an estimated net estate of $30,000.

The contested will was dated April 13, 1935, less than three months prior to his death, at a time when he was very weak, had been suffering for many years from heart trouble, diabetes, kidney and bladder trouble, asthma, rheumatism and other ailments, from which he was then very thin, gone away to almost nothing, could hardly speak, had a glassy stare in his eye, too sick to get shaved, and too far gone to be interested in letters. The chief beneficiary was respondent Mrs. Niemeier, who had been his trusted housekeeper and with whom he had been living alone at his home at 1794 Hazel Avenue, Hayward.

In addition to the bequests to Mrs. Niemeier, there were, in May or June, 1935, after the date of the purported will and within two months prior to his death, placed in joint tenancy with her, decedent’s 1095 shares of Transamerica Corporation, valued by contestants at $12 per share.

Decedent and his relatives were Portuguese. From Portugal he and his sister and brothers had gone to the Azores, from whence he and one of his brothers had gone to Gold Hill or Yirginia City, working in the mines, after which the decedent came to California. He had no occupation. He used to send money all the time to his aged sister while she was in the Azores. In 1920 he sent for her and had her brought to his home at Hayward. She remained there three weeks, after which she went elsewhere to live. She did not understand the English language. Having brought her here from a foreign country, he was by federal laws required to obligate himself to support her in order to prevent her from