Estate of Ross

California Court of Appeal Oct 20, 1931 No. Docket No. 586.Published

Before: Allison

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Holding. The court held that the evidence was insufficient to support a finding of undue influence, as there was no proof of pressure that overpowered the testatrix's mind or volition at the time of the codicil's execution.

Issues

Whether the evidence was sufficient to support the jury's verdict that the codicil was procured by undue influence.
Whether the trial court erred in denying the proponents' motion for a nonsuit regarding the issue of undue influence.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“There is no direct testimony or any evidence of any kind of any pressure being brought to bear upon the testatrix which overpowered her mind or overcame her volition at the time the codicil was made”

“We are of the opinion that the evidence is insufficient to sustain the verdict and the judgment.”

[575]

ALLISON, J.,

pro

tem.

This is an action to revoke the prohate of the will and codicils thereto of deceased, upon the grounds that the codicils in question were procured through the undue influence of Charles C. Ross and Sarah E. Ross, that the codicils in question were procured through the fraud of Charles C. Ross and Sarah E. Ross, and that the deceased was of unsound mind at the time of the execution of the codicils in question. A jury was impaneled to try the case.

It appears that on the fourteenth day of April, 1930, the deceased executed the last of three codicils to her will. At that time she was about seventy years of age. She died on the twenty-eighth day of May, 1930, at the home of her son Charles C. Ross and Sarah E. Ross, his wife, proponents and appellants herein. The deceased had lived in and near La Habra for approximately twenty-three years next preceding her death, and for about six months immediately prior to her death she had resided with her son Charles C. Ross and his wife. William H. Ross, one of the contestants, is also a son of the deceased. Dorothy Yvonne Louise Wilson, the other contestant, is a granddaughter of the deceased, the child of a deceased daughter. Up to the time of her death .deceased was active in business, saw to the collection of her rents and was mentally keen on business propositions.

Prior to the execution of the codicil of April 14, 1930, proponent Sarah E. Ross, at the request of the deceased, called Mr. R. Goer, an attorney with whom the deceased was acquainted and who had on previous occasions at her request called at her home and consulted with her concerning her business affairs, to come to her home and prepare for her a new codicil. Mr. Goer went to the home of the deceased and proponents and appellants herein, and was instructed by the deceased concerning certain changes she desired to make in her will. Mr. Goer took with him a typewriter and there prepared the codicil and in the presence of friends who were present at her request to act as witnesses, read the codicil over to her several times and after being approved by her, it was executed. By the terms of the codicil in question Charles C. Ross and his wife take the bulk of the estate. The only material difference between this codicil and a codicil executed by the deceased on April 12, 1930, is that

Estate of Ross

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ALLISON, J.,

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