Merrick v. Merrick

RUNNELLS, J. pro tem.

Four of the heirs of Mary Elizabeth Merrick, deceased, contested her will before probate and now appeal from a judgment and order admitting the will to probate. The said heirs are children of the deceased, and will be referred to as the contestants. The respondents are also children and heirs of the deceased and will be referred to as the proponents. On June 12, 1947, proponent John P. Merrick filed in the court below his petition for probate of the will of deceased in which it was alleged, among other things, that Mary Elizabeth Merrick died on May 5, 1947, in Alameda County leaving an estate of an estimated value of more than $10,000; that the heirs consisted of the contestants and proponents and in addition thereto two grandchildren. A copy of the will was attached to the petition. In the will there was devised to said John P. Merrick the family home and the residue went in one-sevenths to each of the six children and one-seventh divided equally between the two grandchildren.

Contest to the will before probate was filed on July 8, 1947, by three sons and a daughter of decedent, wherein it was alleged that at the time of the execution of the will decedent was wanting in testamentary capacity by reason of unsoundness of mind and that said will was obtained from the decedent through undue influence.

The contest was tried by the court without a jury and the court found in favor of the proponents on all issues presented and made its judgment and order admitting the will to probate.

The only specification of error which the appellants have raised on appeal is: “ There is no evidence to support the finding that the Will was executed free from the undue influence of proponent or to overcome the presumption of undue influence or to establish that said Will was the free and voluntary act of testatrix.”

The evidence discloses that the testatrix suffered a paralytic stroke in 1944; also a broken hip in 1944 and about six months later the other hip was broken; pins were placed in both hips; that a second stroke was suffered on April 23, 1947; that John P. Merrick had spent practically all his life at his mother’s home; that during the last years of her life he slept on a couch in her room, cared for her and administered to her comfort

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and needs and performed the most menial tasks; that she had indicated on more than one occasion that she wanted him to have the home; that he paid the housekeeper and operating expenses of the home; that the testatrix paid medical and hospital bills out of her own funds; and that upon ascertaining that his mother had suffered a stroke on April 23, 1947, he immediately notified the other children.