Syster v. Martin

SHEPARD, J. This is an appeal from a judgment and order denying admission to probate the will of Elmer L. Sanderson after jury verdict finding that on the day the instrument was executed the deceased, Elmer L. Sanderson, was not competent to make a will. Initially, the grounds of opposition to probate of the will included not only lack of competency of the deceased to make a will, but also that said document was not executed in the form and manner required by statute; that decedent died within 30 days of the execution of the document; that the document was within the purview of Probate Code, section 41; and that the document was not the free and voluntary act of the decedent, but the making and execution thereof was procured by undue influence. Prior to trial, the ground of undue influence was abandoned by contestant. During the trial and before the matter reached the jury for decision the trial court correctly ruled, as a matter of law, that the document conformed in form and manner to the requirements of statute. At the close of the evidence, prior to argument and jury instructions, the trial court correctly removed from the consideration of the jury the ground of opposition that the document was within the purview of Probate Code, section 41, and so instructed the jury.

The will, subject of the contest herein, was executed by decedent on January 24, 1957. He died February 1, 1957 of coronary thrombosis. He was unmarried and left no issue. His only heir at law was his adult brother, Harvey W. Syster, the original contestant herein. From June 20, 1953, until his entry into a hospital on January 21, 1957, on a diagnosis of [654]heart trouble, the deceased lived in a rest home in San Diego, California. At the time of his death he was apparently of the approximate age of 75 years.

In 1904, he was committed to a California State Hospital for the mentally ill on a diagnosis of religious mania, and less than a year later he was discharged. In 1922, he was again admitted to a state hospital for the mentally ill on a diagnosis of “dementia praecox hebephrenic.” In 1926, he was discharged as improved. In 1936 he was appointed executor of his mother’s estate by the probate court of Alameda County and apparently completed his duties therein. In 1941, a title company noted his record of commitment with no formal record of discharge and he appeared before the board of examiners of the state hospital. After examination he was formally discharged as recovered.

The testimony indicates that he had approximately $27,000 in various building and loan deposits and owned some real estate and corporate stock. In 1955, he joined the Knights of Columbus, a fraternal organization, and in that connection met the attorney who drew his will in the hospital on January 24, 1957, at his request. The attorney had met him a number of times in a fraternal capacity, but had not served him in a legal capacity prior to the date of drawing the will. This attorney testified that he went to the hospital in response to a call to his father (also an attorney); that upon entering the room he found decedent sitting up on his bed, discussed with deceased who his relatives were and what his property was, and was told by deceased of the existence of a brother living in San Francisco (the original contestant); that the brother was well fixed and that he did not want to leave anything to him. The will was written in longhand by the attorney at the direction of deceased and was read back to deceased. The will was then and there executed by the deceased, the attorney and a companion attorney acting as subscribing witnesses, the testator and witnesses all being present during drafting, reading and execution of the will. The attorney took the will with him under directions to have a typewritten copy made and mailed to deceased at the rest home. Later, one of the residents of the rest home, at decedent’s request, brought the typewritten copy of the will to decedent at the hospital. The will names Columbian Building Corporation of San Diego; The Roman Catholic Bishop of San Diego, Charles F. Buddy; Thomas Ackerman; St. Jude’s Roman Catholic Church of San Diego; St. Ann’s Roman Catholic Church of San Diego, as