Mason v. Kell

WOOD (Fred B.), J. pro. tem.* A purported will of Raymond G. Kell, decedent, executed about September 10, 1957, was denied probate upon several grounds.

We will first consider whether or not there is substantial evidence in support of the trial court’s finding that decedent was not of sound mind at the time of execution of the purported will.1 Our examination of the record convinces us [287]that this question must he answered in the affirmative and the judgment affirmed.

The decedent operated the Uvas Dam Resort, consisting of a cafe, bar, swimming pool, picnic and camping grounds.

One Clark Heckendorn worked for him as life guard at the swimming pool during the last two and one-half years of decedent’s life. He testified decedent was an alcoholic. The witness never saw him when he was not showing some influence of alcohol. He saw him almost every day during the last six months of his life. Most of the time he would be showing the effects of alcohol to the point that he would be staggering. During the last two months of his life he was usually drunk. Even before that he was an alcoholic. His face showed signs of it.

One day around September the witness had occasion to go into the bar with two Mexican gentlemen, Bud and Joe, and continued in the bar with them while they were there and left with them. Raymond Kell was there at that time. The witness was sitting right there with them all during that visit. Mr. Kell did not write anything during that visit. He presented a document2 to the other two and asked them to sign it. They did sign it. Kell did not sign anything during any of that time. He bought the other two a beer and took the document with him.

At the very time this conversation was held Mr. Kell was awfully drunk. Asked to describe how Kell was acting, Heckendorn said, “Well—Well, he wasn’t able to control—• well, like vibrating; I mean, shaking and stuff like that. He was—and—•” He was not able to stand perfectly erect. In walking he kind of weaved a little bit. When the three came in Kell had a glass of gin and after the other two signed he drank with them. When the three came in he was sitting down on the side next to the door and got up and poured himself a glass of gin. It was a water glass about three-fourths [288]