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

WOOD (W. J.), J. This is an appeal from a judgment of the superior court sitting in probate denying the petition of Hilda Bolton for the revocation of the probate of the will of Mary I. Reade Clarke. By this will, which was executed on June 13, 1940, Mrs. Clarke left her entire estate, valued at about $25,000, to Lorna Isobel Webster, with the British Old People’s Home as the alternate distributee in the event Mrs. Webster did not survive the administration of her estate. The petition filed by Mrs. Bolton contained three grounds for revocation: that the testatrix lacked testamentary capacity, that the will was not executed in conformity with law and that the execution of the will was procured by the undue influence of Mrs. Webster. At the trial before the court sitting without a jury the two grounds for revocation first mentioned were abandoned. On the remaining issue the court found that the execution of the will “was not procured by the undue, or any, influence of the said Lorna Isobel Web[230]ster or of any person whomsoever.” On this appeal it is contended that the findings of the court are not supported by the evidence.

At the time of her death on November 18, 1940, Mrs. Clarke was eighty-two years of age. At that time her only living relatives other than her sister Mrs. Bolton were three first cousins and six second cousins. Mrs. Clarke was married in England in 1882 and soon after her marriage moved to the United States. Mrs. Bolton and Mrs. Clarke did not see each other thereafter at any time but they exchanged letters until Mrs. Clarke’s death. Mrs. Bolton had an income of her own stated by respondents to be six hundred pounds sterling per year and by appellant to be five hundred twenty-two pounds sterling per year.

From the testimony presented by respondents it appears that about two weeks prior to the execution of the will Mrs. Clarke stated to a Mrs. Prickett, a friend of twenty-five years’ standing, that she was worried because she had not made a will. Mrs. Prickett told her that her own father had left his affairs to a trust company and suggested that Mrs. Clarke follow the same course. About a week thereafter a Mr. Turner, who was trust officer at the Santa Monica branch of the Bank of America, telephoned to Richard Gandy, a lawyer, asking him to call upon Mrs. Clarke. Mr. Turner died prior to the trial. Mr. Turner went with Mr. Gandy to Mrs. Clarke’s' home and Mr. Gandy was left alone with Mrs. Clarke. Mr. Gandy, testifying concerning his conversation with Mrs. Clarke, stated that Mrs. Clarke informed him that she wished to have a will drawn in favor of Mrs. Webster; that he inquired concerning Mrs. Clarke’s family and Mrs. Clarke told him that she had a sister in England but that she did not desire to leave anything to this sister because she was elderly and was adequately provided for; that the sister had received money from the family; that she did not care to leave anything to her relatives who were of a distant degree; that he asked concerning the disposition of her property if Mrs. Webster should not survive her, and Mrs. Clarke said she would like to leave it in that event to the British Old People’s Home. Two or three days later Mr. Gandy returned to Mrs. Clarke’s home with a draft of the will, accompanied by Mr. Cockins, an associate lawyer, and by Mrs. Hanson, a stenographer. The will was then executed by Mrs. Clarke. Mrs. Webster had