Estate of Javier

7 Cal.App.2d 624 (1935) In the Matter of the Estate of LOUISA S. JANVIER, Deceased. ELEANOR LORD LEWIS et al., Appellants,

v.

RAYMOND G. THOMPSON et al., as Executors, etc., Respondents.

Civ. No. 10379. California Court of Appeals. Second Appellate District, Division Two.

June 14, 1935. Goudge, Robinson & Hughes, David A. Sondel and Charles M. Fueller for Appellants.

John Perry Wood for Respondents.

Crail, J.

The plaintiffs are contesting the probate of two codicils to the will of the decedent upon the alleged ground of undue influence upon the part of Raymond G. Thompson, who was the attorney for the decedent at the time the codicils were executed and who took part in the preparation of them. One of these codicils bequeathed to the said defendant a part of her estate. The plaintiffs rely for proof upon the presumption of undue influence which the law creates where one who unduly profits by a will sustains a confidential relationship to a testator and actively participates in procuring the execution of the will. (Estate of Lances, 216 Cal. 397 [14 PaCal.2d 768]; Estate of Witt, 198 Cal. 407 [245 P. 197].)

[1] It is the first contention of the plaintiffs that the presumption of undue influence was not overcome by the evidence of the defendants. It is sufficient for us to say that there was substantial evidence to overcome the presumption, and the jury resolved the question in favor of the defendants [626] by a special verdict which this court would not be justified in upsetting on appeal.

[2] The plaintiffs' next contention is that prejudicial error was committed by the trial court in refusing to admit in evidence a letter written by defendant Thompson to one of the kin of the decedent after the death of decedent in which he used the expression, "her estate is left to charity and friends". The plaintiffs contend that the letter shows lack of candor on the defendant's part in failing to state that he was one of the beneficiaries. Contestants urge that "in a case of this kind, the jury was entitled to know all facts from which any reasonable deduction or conclusion might be made respecting the integrity, honesty, candor, truthfulness and character of Mr. Thompson". It is not claimed that the letter misstates the facts or that the letter contradicts in any respect the testimony of the defendant. It was not offered for impeachment purposes, but in order to show a trait of character of the defendant. A trait of character cannot be so shown, and in any event the character of the defendant for candor was not in issue.