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

SPENCE, J. This action was originally brought by Henry Hoover, now deceased, to set aside a certain deed executed by said deceased under date of September 10, 1931. After the death of said deceased on December 27, 1931, the executor was substituted as plaintiff herein. The cause was tried upon the issues of undue influence and incompetency as alleged in the amended complaint and the trial court found in favor of plaintiff on both of said issues. Judgment was [517]entered in favor of plaintiff upon said findings and from said judgment defendant appeals.

In the opening brief appellant urges but two points for consideration on this appeal. The first point is that the evidence is insufficient to sustain the finding of undue influence and the second point is that the evidence is insufficient to sustain the finding of incompetency. After a review of the record before us, we believe that there was ample evidence to sustain both of said findings, but as the judgment should be affirmed in the event that the evidence was sufficient to sustain either of said findings (LaMar v. Bank of America, 218 Cal. 252 [22 Pac. (2d) 689]), we shall discuss only the testimony relating to the issue of incompetency.

At the time of the signing of the deed on September 10, 1931, and at the time of the making of an alteration therein on September 11, 1931, Henry Hoover was eighty-two years of age and was confined to his bed in the San Jose Hospital suffering from cancer of the bladder. He had been in said hospital continuously since July 27, 1931, and had suffered intensely from his malady. Prom the time of his admission there, morphine and amytol compound, in constantly increasing doses, had been continuously administered to him to relieve his pain. On September 8, 1931, he underwent a major operation which was so serious that, with the resulting shock to his system, he had not been expected to live. This condition of shock continued until after the signing and alteration of the deed, during which time he suffered the most excruciating pain except when completely stupefied by opiates. During that period he was given 1% grains of morphine on at least two occasions each day and was also given 6 grains of amytol compound on at least two occasions each day. The testimony showed that the average dose of these opiates as given to adults is grain of morphine and 3 grains of amytol, but the large doses were deemed necessary for the deceased because of the extreme pain which he was suffering. The result of these large doses was to cause him to become dull and stupefied, his respiration became short and the pupils of his eyes became contracted. The deed was signed on September 10th, at about• 6 o’clock in the evening, and the alteration was made therein shortly