Powell v. Porteous

DORAN, J. This is an appeal from an order admitting to probate the will of Emelie G. Cushing, deceased. The order was made following a contest of the will, before a jury. At the close of contestant’s case, the trial court granted a motion for nonsuit as to each of the grounds upon which the contest was based, namely, ineompeteney, undue influence and fraud. Letters testamentary were thereafter issued to respondent R. H. Porteous, executor without bond, and the principal devisee and legatee.

Testatrix at the time of her death on April 4, 1937, at Long Beach, California, was 81 years of age. Mrs. Cushing’s children had died in their infancy, and her only surviving relatives were Andrew J. Powell, contestant herein, who was her [342]half-brother (they were children of the same mother), and his married daughter, Helen Powell'Doane. Dr. Powell, who was 74 years old at the time of the trial, was at one time a practicing dentist at Hayward, California, but had retired from active practice some twenty years previously due to ill health. He was not mentioned in the will.

The evidence reveals that in 1932, respondent R H. Porteous, a married man 42 years of age, was employed on a parking lot in Long Beach, a short distance from the Elks Club. Mr. Ed Cushing, the husband of the decedent, who was a member of the Elks Club, and who resided at the Imperial Hotel located within a block of the club, became casually acquainted with Porteous at that time. A few days after their first meeting, Mr. Cushing, who was out walking with his wife, introduced her to Porteous, and from time to time thereafter Mr. and Mrs. Cushing would give Porteous a dollar or two as a present, because, as respondent testified, they “felt sorry” for him. Porteous joined the Elks Club in 1933, and shortly thereafter procured a position in the club as a servant. Upon only one occasion during Mr. Cushing’s lifetime, and only for a few minutes, did Porteous visit the Cushings at the hotel where they resided'; that occasion arose when he happened to walk home with them.

Mr. Cushing died in October of 1935. Within a week after Mr. Cushing’s death respondent Porteous called upon Mrs. Cushing and informed that her husband had told him to look after her. He began to visit her regularly every day at her apartment, and in 1936 these visits increased to an average of five times a day. He displayed great affection toward her, called her “Mother”, and according to his own testimony, told her that he loved her just like his own mother. He usually kissed her upon arrival and upon leaving. Continuous gifts of money were given to him by Mrs. Cushing, with part of which he bought her flowers and candy, the balance being used to defray his own expenses.