Bemis v. Coombs

NOURSE, P. J. The contestant of a will appeals from a judgment of nonsuit and from an order denying his motion to set aside the decree of final distribution.

Bernice B. Fraser, a 63-year-old childless widow, died on March 27, 1944, at Carmel, leaving an estate consisting of real and personal property valued at $32,337.27. Her [101]last will and testament, dated January 4, 1944, was filed for probate in the Superior Court of Monterey County on March 30, 1944, by Harriet Coombs, executrix and principal beneficiary. "Under the will Mrs. Coombs received all of the estate except $2,500 to Mrs. Jessie Joan Bever and $250 to Samuel R. Bemis, brother of the testatrix and contestant herein. The instrument was admitted to probate on April 10, 1944, and the decree of final distribution was granted on February 28, 1945. On October 2, 1944, Samuel R. Bemis instituted the present action contesting the will principally upon the ground that it was made and executed as a result of the undue influence of Mrs. Coombs. The contestant died prior to the trial and his son, Richard H. Bemis, was substituted as special administrator of his estate. The evidence presented to the trial court by the contestant, which must be viewed in the light most favorable to him, showed the following facts:

Bernice B. Fraser resided in her Carmel home alone for some years prior to her death. She suffered from a cancerous condition known as carcinomatosis which finally resulted in her death. The testatrix operated a weaving business in Carmel and maintained bank accounts with the Carmel Bank for more than 22 years. Her nearest relative was her brother, Samuel R. Bemis, who lived in San Francisco. Mrs. Coombs, the principal beneficiary of the will and proponent herein, is a graduate nurse and was a close friend of the testatrix for the 15 years prior to the latter’s death. She visited Mrs. Fraser frequently but never actually nursed her.

At the time she executed her will Mrs. Fraser was staying in Pacific Grove at the home of Mrs. Coombs for a 10-day period. On January 3, 1944, the testatrix telephoned to Mr. Foster, an attorney, and asked him to come to the house for the purpose of redrafting her will. When the attorney arrived that afternoon Mrs. Fraser met him at the door and conducted him into the living room for a conference at which no other person was present. The testatrix discussed each paragraph of the will and instructed the attorney to draft the instrument so that the bulk of her estate would go to Mrs. Coombs. She stated to Mr. Foster that she wanted to leave only $250 to her brother because she was not on friendly terms with him. According to the attorney, Mrs. Fraser was “very familiar with legal terminology and provisions of wills and very definitely understood just what she wanted.” The next day the will was executed in the dining room of Mrs.