Croll v. Moorman

WILBUR, J.

This is an appeal from an order admitting to probate a will of the decedent dated March 2, 1918, after the granting of a motion for nonsuit at the close of the testimony in a will contest instituted by the appellant Emily Unger Croll, a daughter of decedent, upon the

[715]

ground that the will was procured by the undue influence of Charles W. Unger, a son of the decedent, and Prances Moorman, a daughter of the decedent. The only question involved in the appeal is whether or not the evidence was sufficient to have sustained a verdict of the jury that the will was procured by undue influence if such a verdict had been rendered, for if there was sufficient evidence to sustain such a finding the court erred in granting the motion for nonsuit

(Vanderford

v.

Foster,

65 Cal. 49 [2 Pac. 736];

Davis

v.

Crump,

162 Cal. 513 [123 Pac. 294];

Estate of Caspar,

172 Cal. 147 [155 Pac. 631];

Stieglitz

v.

Settle,

175 Cal. 131 [165 Pac. 431];

Estate of Flint,

179 Cal. 552 [177 Pac. 451];

In re Wall’s Estate,

187 Cal. 50 [200 Pac. 929]).

The evidence tends to show that the testatrix loved the contestant, notwithstanding the apparent estrangement between them; that the respondents Prances and Charles lived with the testatrix and prevented the contestant from seeing her mother or living with her, although the mother desired to live with the contestant and expected to do so when Charles and Prances married and established homes of their own; that the testatrix saw the contestant but did not want Charles and Prances to learn of that fact. The contestant testified that in 1917 or 1918 her brother Charles said to her: “I will see that your mother will leave you but a dollar.” Prances went with her mother to a law office in February, 1918, and two days after the will was executed returned with her mother to get the will and paid for it. Appellant also relies upon other evidence showing hostility between the children before and after the mother’s death, and also upon the terms of the will giving contestant the mother’s gold watch and chain, and upon the claim that the mother did not understand English and therefore did not understand the balance of the clause, particularly the word “resents.” The clause of the will thus relied upon by the appellant to show undue influence is as follows: