Estate of Klopstock

SPENCE, J.

The appellants, who are the three brothers of the deceased and are the contestants herein, appeal from the judgment of the trial court admitting to probate a will executed by the deceased in 1932 and setting aside an order previously made admitting to probate a will executed by the deceased in 1925.

The grounds of contest urged in the trial court were that Isaac D. Klopstock, deceased, was not of sound mind when he executed the 1932 will; that said will was the result of undue influence exerted upon said deceased by Grace E. Klopstock, who was the wife of said deceased and by Samuel Samter; and that said Grace E. Klopstock and all persons claiming under the will of said Grace E. Klopstock were guilty of laches and were estopped from asserting that the 1932 will was the last will and testament of said deceased. The trial court found against the contestants on all of these issues and judgment was entered accordingly.

Isaac D. Klopstock, deceased, died in 1933, some nine months after the execution of the 1932 will. He had married

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Grace E. Klopstock in 1902 and they had lived happily together throughout the thirty-one years of their married life. There were no children of this marriage. In 1930 the deceased suffered a stroke and he was a sick man from that time until his death. He had executed an holographic will in 1925' under which his three brothers, his sister and a friend would have received cash bequests amounting to $27,500. In that will, the residue of his estate was left to his wife Grace E. Klopstock and in the event that she predeceased him, then to his brothers and sister. His wife and his brother Frederick were named as executors. In 1932 he executed the will which was the subject of the contest by his three brothers. In that will, the cash bequests were reduced to a total of $10,000. The three brothers were omitted, the bequest to his sister was reduced and legacies of $1,000 each were made to five nephews and nieces. The residue of his estate was left to his wife, and in the event that she predeceased him, then to his brothers and sister. His wife was named as executrix in this will. All of the property of the deceased was community property.

The will of 193-2 was drawn by Samuel Samter, an attorney at law who had known the deceased for twenty-five or thirty years and who had acted as the attorney for the wife of the deceased. Mr. Samter and Mr. Berman, an attorney at law associated with Mr. Samter, were the subscribing witnesses. Mr. Samter had visited the deceased upon numerous occasions after the deceased became ill in 1930. In 1932, he was advised by the wife of the deceased that the deceased wanted to see him regarding the making of a new will. Mr. Samter called upon the deceased and obtained the necessary information for the purpose of making the will. Mr. Samter and the deceased were the only ones present on that occasion and the conversation lasted for about one hour. The deceased told Mr. Samter that he had previously made a will in 1925; that conditions had changed since that time and that he desired to make some changes; that his stocks had gone down and he was not as rich a man as he was in 1925:; that he wanted to cut down the bequests which he had made in the 1925 will as he had to look out for his wife. They discussed the fact that all the property was community property and the deceased said he knew that one-half of the property would