Duhaney v. Calendar

TAYLOR, J. On this appeal by the niece of the predeceased. first wife of Samuel Duhaney (hereafter testator) from a decree entered after special verdicts denying her contest to his December 1962 will naming as chief beneficiary his second wife, the respondent, the only questions concern the [655]instructions on undue influence and the propriety of the rejection of certain expert testimony.

As no contentions are raised concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice. The testator died on November 8, 1963, leaving a will executed December 3, 1962, devising almost all of his $25,000 estate to respondent, Olive Louise Duhaney, whom he had married on October 2,1962. Appellant, Rosalie Tillman Calendar, the niece of the testator’s predeceased first wife Lenora, known as Suzie, was the chief beneficiary of a prior will executed in 1949.

The testator left his native Martinique after the earthquake of 1902 and married Suzie in 1913 in Mexico. Their marriage was resolemnized in 1917 after they came to Oakland. They had no children but raised a foster son, Jack Clemons, and helped send his children to college. From 1940 to 1943, appellant lived with them. The testator worked as a cook for Southern Pacific from 1917 until 1958, when he retired after an accident. After his retirement, he spent all of his time at home taking care of his roses and vegetable garden, and looking after his rental properties, including the triplex in which he lived. His chronological age was not known but estimated to be between 74 and 80 at the time of his death. In the last five years of his life, he suffered from diabetes, glaucoma causing blindness in one eye, arteriosclerosis, cancer of the prostate and the kidney infection that was the underlying cause of his death. Some of these ailments, particularly the diabetes and glaucoma, required daily care as well as frequent trips to the hospital clinic, particularly after October 1962, when he had to go every two weeks.

Suzie died on July 13, 1962, after an illness of several months, and left all of her property to the testator in accordance with their mutual wills executed in 1949. After her death, appellant moved in to keep house and take care of the testator. In August 1962 the testator contacted the attorney for Suzie’s estate and made a new will devising most of his property to his daughter (not Suzie’s child) and grandchildren in Jamaica. The attorney, at the testator’s request, also prepared a general power of attorney to one Charles English. The power of attorney was never executed as the testator was able to get around and take care of his affairs. In September 1962, Charles English indicated to appellant that she could go home to her family as he had a power of attorney and would thereafter take care of the testator’s affairs and get a housekeeper.