Berg v. Ludinghouse

STURTEVANT, J.

After the death of Ellen Hanlon, when her purported will was offered for probate, one of her daughters, Agnes Berg, filed an objection and protest against the will being admitted to probate. Thereafter a trial of the contest was had and a judgment went for the contestant and the proponent has appealed under section 953a of the Code of Civil Procedure.

In her attack the contestant specified two grounds; one that at the time of the execution of the will the decedent was mentally incompetent to make, execute or subscribe a will; and, second, that at the time of the execution of the will the decedent was acting under the undue influence of various persons, and in particular Mamie Ludinghouse, another married daughter.

In her opening brief the appellant made the point that there was no conflict in the testimony and that the testimony adduced at the trial was such that it fails to support the judgment on either theory. In her reply to this point the respondent sets forth by question and answer the testimony which she claims supports the judgment on the basis of undue influence. We shall take up these two theories separately in the order stated in the respondent’s brief.

As to the first theory .the respondent claims that the evidence showed “that Ellen Hanlon was feeble in health, suffering under disease, aged and infirm, and that for the past year of her life at least that she was sinking rapidly both physically and mentally; that for some years prior to her death she

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was suffering from a fatal malady, namely, a tumor; that she was being constantly doped with opiates to relieve her terrible pain and suffering, and that the doses were given stronger and oftener as she got worse; and that at no time was she free from the effect of these opiates.” It was further testified that the decedent was of unsound mind and that she did not understand the act she was doing; that her answers were not responsive to the questions asked of her; that at times she had no mind at all and did not know anything, and that her mind rambled and wandered. That her m'emory was gone; that she was mentally incompetent, and that the morphine was removed from her reach for fear she would commit suicide, and that Mamie Ludinghouse had herself admitted that “her mother was off and was not responsible for anything she did.” And the respondent claims that evidence was introduced showing that the statements of the testatrix proved that her feelings toward her children, particularly to her son Mark, were far different from the feeling represented by the will.