Estate of Fossa

210 Cal.App.2d 464 (1962) Estate of ANDREA FOSSA, Deceased. EDWARD J. CLARK et al., Plaintiffs and Appellants,

v.

WILLIAM J. RAFFETTO, JR., et al., Defendants and Respondents.

Civ. No. 20555. California Court of Appeals. First Dist., Div. Three.

Dec. 5, 1962. Leonard A. Worthington, Everett E. Power and J. J. Schubal for Plaintiffs and Appellants.

Molinari, Casalnuovo & Berger, Stephen L. Mana and Leonard B. Berger for Defendants and Respondents. [466]

SALSMAN, J.

Appellants contested the will of Andrea Fossa on the ground of lack of testamentary capacity. Respondents' motion for a directed verdict was denied. The jury was unable to reach a verdict, and respondents then moved for entry of judgment in their behalf, pursuant to Code of Civil Procedure section 630. The court granted respondents' motion and admitted the will to probate. This appeal challenges the judgment.

[1] It is long established that in ruling on a motion under Code of Civil Procedure section 630 the trial court is governed by the same rules which circumscribe its power to grant a motion for a nonsuit. (Estate of Lances, 216 Cal. 397, 400 [14 P.2d 768]; Jaehne v. Pacific Tel. & Tel. Co., 105 Cal.App.2d 683 [234 P.2d 165].) [2] If there is any substantial evidence tending to prove in favor of the contestants all the facts necessary to make out their case, they are entitled to have the case go to the jury for a verdict on the merits. [3] In our consideration of this appeal we must take as true all evidence tending to prove the contestants' case, together with all reasonable inferences to be drawn from such evidence, disregard all evidence which does no more than raise a conflict with that of the contestants, and determine therefrom if it can be said that on no legal theory have contestants made a prima facie showing of testamentary incapacity. (Estate of Ivey, 94 Cal.App. 576 [271 P. 559]; Sweet v. Markwart, 115 Cal.App.2d 735 [252 P.2d 751].) We turn, therefore, to an examination of the evidence in the light of the rules stated.

[4a] The contestants produced evidence to establish these facts: The will of the testator was made about noon on July 30, 1959, while he was in the hospital. He had been declared incompetent by order of the superior court just 30 minutes before he executed his will. He had been in the hospital since June 24, 1959. He had surgery on June 30th. He died five days after the execution of the will. On July 15, 1959, his attending physician had left written orders, a part of the hospital records, that he "Advised no signing of legal papers by P. T., patient, by visitors. Patient not responsible." The letters of guardianship were used by the attorney to gain entrance to the testator's hospital room. The attorney filled in various matters on a previously purchased form will. Because of his weakened condition the testator was unable to sign the document, but placed a mark on the will. The only