Estate of Highley

This is a contest of the will of Lottie E. Higley, deceased, brought by Belle M. Hurley, a daughter, contestant and appellant, against Ida E. Johnston, proponent and respondent, on the ground of undue influence on the part of proponent. The trial court ordered a nonsuit and entered judgment accordingly, and this appeal is from said judgment.

[1] The judgment of nonsuit was properly granted. Neither of the subscribing witnesses to the will was called as a witness in the case, nor was any other person present *Page 666 at the execution of the will called to testify on behalf of the contestant, nor was there any testimony that the proponent or any other person had directly or indirectly influenced or attempted to influence the decedent in the making of her will or in the disposition of her property. The proponent of the will, Ida E. Johnston, was called on behalf of the contestant and testified that she was not present at the execution of her mother's will; that she had never made any suggestion to her mother as to the manner in which, or the persons to whom, the decedent should leave her property; that her mother had never indicated to her, prior to the execution of said will, how she intended to leave her property, and that after the execution of the will her mother had never informed her of its contents, and that she, proponent, had no knowledge of the contents of the will until the same was read to her and her sister, the contestant, immediately after the death of her mother, by the attorney in whose custody the mother had left the will, except that some time after the will had been executed the mother made a conveyance of six lots at Manhattan Beach, and at the time she made this conveyance the mother stated to the proponent that these were the lots that she had left to the contestant. The testimony further showed that decedent and her daughter, Ida E. Johnston, were estranged during a period of time beginning in 1908 and ending about the first part of the year 1916. During the latter part of the year 1915 a reconciliation was effected between the decedent and her daughter Mrs. Johnston, and in the early part of 1916 Mrs. Johnston took up her residence with her mother and the two lived together until the death of the decedent in November, 1919. The will was executed in March, 1918. Prior to the death of her mother the contestant lived in Rockford, Illinois, except for a visit made by her to her mother in 1905. The relations between the contestant and her mother were of the most friendly nature, and they corresponded regularly except during the last year of her mother's life. There was evidence to the effect that the proponent, some years prior to her mother's death, had said that she would never live with an old person without she got everything she had. One of the neighbors of the deceased also testified that she had been very friendly with the deceased and visited her in her home every day, *Page 667 but after the deceased and proponent became reconciled the relations between the witness and the deceased changed, and that decedent thereafter did not appear to want to see the witness. A mere statement of this evidence is in our opinion sufficient to show that it is utterly lacking in those essentials which go to make out a case of undue influence, and in our opinion the trial court committed no error in granting proponent's motion for a nonsuit. (Estate of Anderson, 185 Cal. 700 [198 P. 407].) In this case will be found an extensive reference to the authorities of this state upon this subject. These authorities undoubtedly sustain the ruling of the trial court in granting a nonsuit in the case at bar.