Estate of Trabucco

California Court of Appeal May 29, 1961 No. Civ. Mo. 9899Published

Before: Van Dyke

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Holding. The court held that the evidence was insufficient to support a finding of undue influence, duress, menace, or fraud, as there was no proof that the testator's free agency was destroyed at the time the will was executed.

Issues

Whether the evidence was sufficient to support the jury's verdict that the will was procured by undue influence, duress, menace, or fraud.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Influence to be undue so as to justify the voidance of a will must be such as in effect to destroy the testator’s free agency and substitute for his own another person’s will.”

“Proof of general influence alone is insufficient. Proof of opportunity to influence the making of the will, even coupled with an interest or motive to do so, is insufficient.”

“A will cannot be overturned on the mere speculation or suspicion that undue influence may have been used to procure it.”

VAN DYKE, P. J.

This is an appeal by contestant, Dorothy M. George, from an order admitting decedent’s will to probate after the court had granted the proponents’ motion for judgment notwithstanding the verdict in a will contest.

[645]

Decedent, Gus Trabuceo, died October 9, 1958, in Merced, where he had lived for approximately 50 years. He left a formal will, duly executed and dated May 6, 1958, by which he gave all his property to respondents, Louis and Helen Cavanna, husband and wife, who were not related to him. They petitioned for probate of the will and appellant filed a contest before probate, setting up various grounds of contest, among which were duress, menace, fraud and undue influence. These latter are the only grounds which are the subject of this appeal. At the close of all the evidence and under appropriate instructions the jury returned a verdict that the will had been procured by the undue influence of respondents, and had been executed under their duress and menace and through their fraud.

Gus Trabuceo came to the United States from Italy in 1903. He went first to New York and shortly thereafter to Merced, California, where he continued to live up to the time of his death, except for one year spent in Lodi, California, in 1922, and for an extended trip to Europe in 1923. He was a bachelor. Prom 1921 to 1928 he and Louis Cavanna lived together. In 1928, when Louis married Helen, Gus moved into the new home set up by them and lived with them until he was removed to a hospital for an extended last illness of four or five months’ duration. In the Cavanna home he had his own room with private bath. He took all his meals with the Cavannas and their children. There was a close family relationship among the group. Gus and Louis were in business together for a long time as partners and also made investments together. Gus accumulated considerable property. In 1955 he deeded two lots to the two daughters of respondents; he also deeded six lots to respondents, reserving a life estate for himself.

Assuming the existence of a confidential relationship between Gus and the respondents, present also in

Estate of Robbins,

172 Cal.App.2d 549 [342 P.2d 933], the evidence is still insufficient to measure up to the test of undue influence. This case is sufficiently similar to

Estate of Trabucco

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VAN DYKE, P. J.

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