Bacon v. Bank of America National Trust & Savings Ass'n

THE COURT.

Respondents filed a contest to the will of Jennie E. Hartley. The contest was based upon three grounds: 1. Incompetency of Jennie E. Hartley;

2.

Lack of due execution; and 3. Undue influence of Carl E'. Wagner. The trial was had before a jury. After respondents had rested their case appellant moved for a nonsuit on all of said grounds and same was denied. Thereupon the trial continued and the jury returned a verdict that the testatrix was of unsound mind at the time she executed the will; that the said will was not executed in the manner and form required by law and that it was procured under the undue influence of Carl E. Wagner. Upon this verdict judgment was rendered in favor of respondents and thereupon appellant moved for a new trial, and same being denied it prosecutes this appeal.

Appellant contends that the evidence is not sufficient to support the verdict. The evidence produced by respondents was substantially as follows: They were the next of kin and heirs at law of decedent; they were her first cousins; two of them, Dollie and Birdie Bacon, had lived with her since 1907; that the alleged will was executed on July 3, 1928; that the testatrix at that date was eighty years of age; that she had been a resident of Redwood City for many years; that she had been a school-teacher, had taught in that city and for a time was assistant super

[632]

intendent of schools in San Mateo County; that during all of this time she was a dignified, refined and intelligent woman, very decorous in her - conduct. Beginning in 1919, and continuing thereafter until her death on August 30, 1932, her friends and acquaintances began to notice a change in her mental condition, and this change became more marked in 1926 following the death of a sister. Numerous intimate friends and neighbors, of decedent testified to her unsoundness of mind and mental incompetency during 1927 and 1928, and that this condition continued to exist until her death. Two physicians, Dr. Joseph Butler and Dr. Bernard Kaufman, gave as their opinions that the testatrix was mentally incompetent in 1928. Dr. Butler, who was her physician since 1918, testified that in his opinion the decedent was incompetent since 1919. Dr. Kaufman, who was called in consultation with Dr. Butler, testified in his opinion she was incompetent in 1928. Richard Barrett, who had been her attorney and legal adviser for a number of years, testified that he had known her and had been intimately acquainted with her since 1907; that he noticed her mind became unbalanced in the early twenties, and that after her sister’s death in 1926 she grew worse mentally and from that time on was mentally incompetent. She could not carry on a coherent, connected conversation, and on a number of occasions when she came to his office she would dance around. She offered to deed him some of her real estate but he declined to accept it. Mrs. Miramontes, city tax collector of Redwood City, testified that she had known the testatrix for thirty years; that in her opinion from 1926 on said testatrix was an incompetent person. Mrs. Agnes Coleman testified that she had been a neighbor of testatrix for many years and frequently met and talked with her; that decedent had been a very bright woman until 1925 or 1926; that then there was a marked change in her mentality and in 1928 she was wholly -incompetent. Mrs. Emma Lalande said that she had been intimately acquainted with decedent for many years; that prior to 1924 she was a very bright woman; in 1924 she noticed that her mind was failing and she gradually grew worse, her memory failed her, she could not collect her thoughts, and after 1926 she was incompetent. Many other witnesses, friends and neighbors