Estate of Cashion

California Court of Appeal Jul 22, 1938 No. S. C. 65Published

Before: York

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Holding. The court affirmed the judgment revoking the probate of the will, holding that the jury's verdict regarding the testatrix's lack of mental capacity was supported by substantial, albeit conflicting, evidence. The court further held that the trial court's instruction on undue influence, despite a prior nonsuit on that issue, did not constitute prejudicial error given the clear focus on the single issue of mental capacity.

Issues

Whether the evidence was sufficient to support the jury's verdict that the testatrix lacked the mental capacity to execute a valid will.
Whether the trial court committed prejudicial error by instructing the jury on undue influence after granting a motion for nonsuit on that issue.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the testimony adduced at the trial was directly conflicting on the question of mental competency of the testatrix, and that therefore her mental state on the day she executed the will was a question of fact for the jury”

“the evidence supports the verdict of the jury that testatrix had not sufficient mental capacity to make the will here in question on the day she signed the same.”

“no prejudicial error was committed by the court when he gave an instruction on the question of undue influence after a motion for nonsuit as to that issue had been granted.”

YORK, P. J.

Jessie Cushion, aged 58 years, died on April 14, 1936, in Los Angeles County, leaving a last will and testament dated July 14, 1934, by which she bequeathed to her son, the respondent herein, a diamond ring, and devised and bequeathed to her daughter, the appellant Jean E. Flanagan, all the rest of her property, both real and personal. Charles E. Pearce, who was named therein as executor thereof, having predeceased the testatrix, the appellant Edwin L. Carty was duly appointed as administrator with the will annexed, the nomination of said son and daughter to that effect having been duly filed, and the will was admitted to probate on May 18, 1936. Thereafter, to wit, on October 19, 1936, respondent son filed his contest and petition for revocation of the probate of the said will upon the ground, among others, that testatrix at the time she executed her will was not mentally capable of making a valid will. Appellants, the proponents of the will, filed their answer in opposition to such contest and upon the issue so joined the cause was heard by the trial court sitting with a jury. During the course of the trial all questions were disposed of upon motion for nonsuit, except one issue which the trial judge in his instructions to the jury stated as follows:

“The one issue before you is whether or not Mrs. Cushion during the very day she made this will, on the 14th day of July, 1934, was or was not of sufficient mental capacity and

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competency to make such a will, and that is the only question you have to determine.”

At the close of its deliberations, the jury returned the following special verdict:

“1. Was the will which is in evidence in this proceeding executed by Jessie Cushion as and for her last will and testament? Answer: Yes.

“2.

Was said will the free and voluntary act of Jessie Cushion? Answer: No.

“3. Was Jessie Cushion of sound and disposing mind and memory and mentally capable of making a will on July 14, 1934, at the time said will is claimed to have been executed? Answer: No.

‘ ‘ 4. Did she understand the nature of the act she was about to perform? Answer: No.

Estate of Cashion

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YORK, P. J.

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