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(- Cal. - 194 Pac. 5.) held by the testatrix or by J. Gamble ceremony with the testatrix a year Carson in the presence of each other. before her death, and she believed Re Donnely, 68 Iowa, 126, 26 N. W.

then and always thereafter that he 23; Re Dolbeer, 149 Cal. 227, 86 Pac.

was her husband, and made her will 695, 9 Ann. Cas. 795; Vallejo & N. R.

in that belief, yet he was not such Co. v, Reed Orchard Co. 169 Cal, 545, 147 Pac. 238.

legally, because he was already marThe evidence introduced was in

ried to a woman who was still living sufficient to show the exercise of any and from whom he had not been diundue influence or fraud in the pro vorced. It is also alleged that Carcurement of the will of Alpha 0. Car son knew he was not free to marry, son, deceased.

and yet represented that he was, and Re Donovan, 140 Cal. 390, 73 Pac.

that the testatrix's belief was in1081; Re Ricks, 160 Cal. 450, 117 Pac. duced by these false representations. 532; Re Kaufman, 117 Cal. 288, 59 Am. St. Rep. 179, 49 Pac. 192; Re Ben

It is also alleged that solely because

of this belief she made the will in ton, 131 Cal. 472, 63 Pac. 775. Messrs. Daniel M. Hunsaker, Hun.

question, leaving the bulk of her essaker & Britt, and Joseph P. Sproul

tate to him. also for respondents.

Shortly before the matter came on

for trial the contestants offered an Olney, J., delivered the opinion of

amended petition for revocation, the court:

and asked for leave to file it. Their One Alpha 0. Carson died, leav

application was denied, and the coning a duly executed will by which

testants complain of this ruling as she made bequests, aggregating

error. When it came to the trial, some $35,000, to various relatives,

the contestants were also prevented some forty-one in number, and left

in very large measure from proving the balance of her estate, something their case by rulings of the court over $100,000 in value, to “my hus- excluding their evidence, and of band, J. Gamble Carson.” She also

these rulings they also complain. nominated the last named as the

We think the rulings were in truth executor of the will. The instru

wrong, but it is apparent that if ment was duly probated, and there

both the evidence introduced by the after and within the statutory time certain of her heirs filed petitions, sought to introduce, and were not

contestants and that which they contesting its validity and asking permitted to, would together not that its probate be revoked. The

have made out a case justifying the residuary legatee, Carson, and some

revocation of probate, the result of the other beneficiaries, answered

would have been the same, and the the petitions, and trial was had be

errors mentioned were not prejudifore a jury upon the issues so made. cial. The first and the most imporAt the trial, the contestants were

tant point in the case, therefore, is, nonsuited, and judgment was en Was the evidence for the contesttered denying the revocation of pro

ants, both that which they introbate. From this judgment the con duced and that which they sought to testants appeal.

introduce, sufficient to justify a The grounds of contest, as alleged,

revocation of the probate of the were three: First, a want of due will? execution; second, undue influence

In discussing this point, it should upon the testatrix, alleged to have be said at the outset that neither the been exerted by Carson; and, third, contestants' petition nor their evifraud upon her, alleged to have been dence makes out a case of undue likewise practised by him. The first influence. The only substantial difground was abandoned, and may be ference between the second count of dismissed from consideration. The the petition, that alleging undue substance of both the second and influence, and the third count, that third grounds was that, while Car- alleging fraud, is that in one it is son had gone through a marriage alleged that the will was executed

17 A.L.R.-16.

Will-andue influence deceit as to relation of husband and wife.

under the undue influence of Carson, would tend to show that any of the consisting in his deceit, whereby he other beneficiaries were parties to induced the testatrix to marry him Carson's alleged fraud, or that his and to assume and maintain the re fraud had any effect upon the teslation of wife and husband with tatrix's testamentary intentions othhim, and in the other it is alleged er than to induce her to make him that the will was executed through her residuary legatee and to appoint his fraud consisting in the same de him as her executor. So far as the ceit. There is no allegation of any other beneficiaries are concerned, subjugation of the mind or will of their situation is that the testatrix the testatrix to that of Carson, so died leaving behind her a duly exethat in making her will she was not cuted instrument, expressing her acting freely upon the facts as she testamentary wishes in their favor believed them to be. Such subjuga unaffected by undue influence, tion of the mind of the testatrix was fraud, or other vitiating circum

an essential element stance. This means nothing more or of a case of undue less than that the will is perfectly influence, and had valid as to them. The result is that to be both alleged it is only the portions of the will in

and proved. It was favor of Carson whose probate not alleged, as we have said, nor was should be revoked in case the conthere any evidence whatever intro testants should succeed, the remainduced or offered tending to prove it. ing portions continuing as a valid It is alleged that the testatrix and expression of the testatrix's tesCarson lived in closest intimacy and tamentary intention. 1 Schouler, association until her death, but there Wills, Exrs. & Admrs: $ 248; 14 Cyc. is no allegation that Carson abused 1149; Civ. Code, § 1272. If it were the confidential relation which thus not possible to separate the portions existed. The wrong alleged is the affected by the fraud from those undeceit whereby that relation was affected, it may be that the whole brought about and came to exist, and will would have to fail, but that not any misuse of the relation as it question is not presented here, for did exist. The distinction between the provisions in favor of Carson a case of undue influence and one of are easily and completely separable fraud is discussed at length in Re from the remainder. This being the Ricks, 160 Cal. 467, beginning at situation, it is apparent that the page 480, 117 Pac. 539, and it is not beneficiaries, other than Carson, are necessary to repeat that discussion not affected by the contest, however here. Suffice it to say that it is to it may go, and are not interested the effect mentioned, that in order parties to it. that there be undue influence there Passing now to the sufficiency of must be a subjugation of the will of the evidence, the evidence of the conone to that of another.

testants,-giving to it its utmost The present case is, then, one of effect, as we must do

Appeal-effect of fraud only. Being such, there is in view of the fact evidence-will another point of which we would that it is an order of speak before taking up the suffi nonsuit which is under review,ciency of the evidence. It seems to was confined to showing that the have been assumed that in case the testatrix married Carson under the contestants showed that the will was mistaken belief, induced by his repinduced by the alleged fraud of Car- resentations, which he knew to be son, the entire will would fail. We false, that he was free to marry, that

do not

so under she made the will in the belief that stand. There is he was her lawful husband, and that

nothing, either in she was never undeceived upon this the allegations of the contestants' point. It also appears that the will petition or in their evidence, which was executed about a month after

contest.

-fraud-effect on will as a whole.

(- Cal. —, 194 Pac. 5.) the marriage, and, as we have said, had been refused, was held valid, althat the parties lived together as though, unknown to the testator, she husband and wife in closest associa was not a single woman. The diftion until her death at the end of a ference between such a case and the year. Are these facts sufficient to present is evident without discushave sustained a possible verdict by sion. the jury invalidating the will or The weight of authority, then, is those portions of it by which Carson distinctly in favor of the sufficiency benefits? If they are, the order ap of the contestants' evidence to avoid pealed from must be reversed. a nonsuit, and such also we think is We have been cited to but two the rational view.

will-bequest cases involving substantially the The gross fraud up- secured by

fraud-validity. same state of facts as that presented on the testatrix is, here. They are those of Kenneth v. of course, apparent. According to Abbott, 4 Ves. Jr. 803, 31 Eng. Re the evidence, she was seduced by a print, 416, and Wilkinson v. Jough- marital adventurer into a marriage in, L. R. 2 Eq. 319, 12 Jur. N. S. 330, with him, which was no marriage in 14 L. T. N. S. 394, 35 L. J. Ch. N. S. the eyes of the law because of the 684. In each, the facts were prac- fact, which he concealed from her, tically identical with those of the that he had already had at least one, present case, and in each a bequest if not more, spouses, legal and ilin favor of the supposed spouse was legal, who were still living and unheld void for his or her deceit. As divorced. There can be no question authorities to the contrary, we are also that if the bequest to Carson cited by counsel for Carson to Moore were the direct fruit of such fraud, v. Heineke, 119 Ala. 627, 24 So. 374, it is void. Re Donnely, 68 Iowa, 126, 26 N. W. The only question in the case, as23, Smith v. Diggs, 128 Md. 394, 97 suming the contestants' evidence to Atl. 712, Re Dries, 69 N. J. Eq. 475, be true, as we must, is, Was the be55 Atl. 814, Taylor v. Higgs, 202 quest in fact the fruit of the fraud ? N. Y. 65, 95 N. E. 30, Meluish v. This is a question of fact which it Milton, L. R. 3 Ch. Div. 27, 45 L. J. was for the jury to

Trial-juryCh. N. S. 836, 35 L. T. N. S. 82, 24 determine; and, un- will as result of Week. Rep. 892, and Rishton v. less it can be said Cobb, 5 Myl. & C. 145, 41 Eng. Re that the jury could have reasonably print, 326, 9 Sim. 615, 59 Eng. Re reached but one conclusion concernprint, 495, 9 L. J. Ch. N. S. 110, 4 ing it, and that was that the bequest Jur. 261. But in every one of these to Carson was not the direct fruit cases, with the exception of the last, of his fraud, the evidence was suffithere was either an entire lack of cient to prevent a nonsuit. evidence that the deceased spouse

Now a case can be imagined was unaware of the true state of where, nothing more appearing, as facts, or else it affirmatively ap in this case, than that the testatrix peared that he or she knew what it had been deceived into a void marwas; in other words, it did not ap- riage and had never been undepear that there had been any deceit. ceived, it might fairly be said that a This, of course, distinguishes these

conclusion that such deceit had afcases at once from the present. In

fected a bequest to the supposed fact it is fairly implied in all that husband would not be warranted. the bequest would have been void if If, for example, the parties had the facts had been as the contest lived happily together for twenty ants claim they are here, and this years, it would be difficult to say is directly said in several of them.

that the wife's bequest to her supIn the last case, that of Rishton v. posed husband was founded on her Cobb, a bequest to a woman to whom supposed legal relation with him, the testator had paid court and and not primarily on their long and made a proposal of marriage, which intimate association. It might well

fraud.

be that if undeceived at the end of circumstances the inference menthat time her feeling would be, not tioned is yet not an unreasonable one one of resentment at the fraud upon

from the facts that appear. Our her, but of thankfulness that she conclusion, therefore, is that the orhad been deceived into so many der of nonsuit should not have been years of happiness. But, on the made. other hand, a case can easily be The conclusion so reached reimagined where the reverse would quired a consideration of the rulings be true. If in this case the will had of the trial judge, refusing the conbeen made immediately after mar testants leave to file their amended riage, and the testatrix had then petition, and refusing to permit the died within a few days, the conclu introduction of certain evidence by sion would be well-nigh irresistible, them. As to the amended petition, in the absence of some peculiar cir it stated essentially the same matcumstance, that the will was found ters as the original. The only differed on the supposed legal relation ence in substance was as to the numinto which the testatrix had been ber of marriages Carson had gone deceived into believing she was en through with prior to the one with tering. Between these two extreme the testatrix; the amended petition cases come those wherein it cannot alleging several instead of one. The be said that either one conclusion or reason for refusing leave to file it the other is wholly unreasonable, do not appear, and the claim of reand in those cases the determination spondent is that the matter was one of the fact is for the jury. Of that within the discretion of the court. sort is the present.

This is true, but the discretion exerWe are not unmindful of the fact cised must be a reasonable one. It that the contestants offered no evi- has been said time dence other than that the testatrix and time again in Trial-refnal of had been tricked into the marriage; this state that in amended that in particular they did not offer the interest of jus- ableness.

petition-reasonany direct evidence that the induc tice, and in order ing reason in her mind for her be that every case may so far as posquest to Carson was her belief that sible be determined upon its real he was her legal husband, and that facts, the amendment of pleadings the bequest would not have been to accord with the claimed facts made except for that belief. But

should be freely al

Pleadingsuch direct evidence is not neces lowed, unless good allowance of

amendment. sary, and not improbably could not reason to the con

possibly be had. It trary appears. No such circumEvidencevalidity of will, is not an unreason stance as inexcusable delay on the -sufficiency.

able inference, from part of the contestants or their takthe fact that she had been so recent ing the adverse party by surprise ly married when the will was made, appears here, and in the absence of that she left the bulk of her estate

some such circumstance we can see to Carson because she believed he no reason whatever why the conwas her lawful husband, and would testants should not have been pernot have so left it if she had be mitted to correct or amplify by lieved otherwise. Such inference,

amendment their allegations as to of course, was subject to being the previous marriages of Carson. strengthened or weakened by evi As to the rulings upon evidence, dence of other circumstances throw at the very outset of the trial the ing light upon the matter, such as contestants sought to introduce testhe views of the testatrix upon the timony of statements made by the sanctity of marriage, her harmoni testatrix in conversations with othous or other relations with Carson, ers than Carson, evidencing her and the strength of her affection belief that her marriage to Carson for him. But in the absence of such was legal. The evidence was ex

lenve to tile

state.

(- Cal. -, 194 Pac. 5.) cluded. Later the contestants again did not bear on the testatrix's mensought to introduce such testimony, tal state were excluded for this reaand it was again excluded, the court son, and others admitted which did. announcing that it would admit no It is plain here that the belief of the evidence of conversations with the testatrix at all times prior to her testatrix, i. e., of statements by her, death that Carson was free to marry except on occasions when Carson her, and that their marriage was was present, the court giving as his valid, was material to the issues of reason that statements of a deceased the case. This being so, evidence of

are not competent her declarations at any time indicatEvidencestatements of

in a suit for fraud ing her then belief to that effect was testatrix

or undue influence, competent, and should have been adadmissibility.

but are competent mitted. in a case of unsoundness of mind. The trial court did at first admit The exclusion of the testimony was evidence of statements by the teserroneous.

tatrix in Carson's presence that The rule is without exception, so Carson had been married before and far as occurs to us at the moment, had been divorced, saying that the that whenever the intention, feeling, evidence was admissible only as belief, or other mental state of a against Carson. Later this evidence person at a particular time, includ was stricken out, and other evidence ing his bodily feeling, is material to of similar import refused admission, an issue under trial, evidence of on the theory apparently that it was -declarations

such person's decla not competent as against the benefishowing mental rations at the time, ciaries under the will other than

indicative of his Carson, and, not being competent as then mental state, are admissible in against them, was not admissible at evidence. It is wholly immaterial all. There are two answers to this. whether such declarations were In the first place, as we have said, made in the presence of an adverse the other beneficiaries were not in party to the litigation or not, or fact interested parties. The cause what the character of the litigation was one really between Carson alone is. The sole tests are, Is the inten and the contestants. In the second tion, belief, or other mental state of place, the declarations, while wholly the declarant at the time material to incompetent to prove the matters rethe issues under trial? and, Does the lated and in fact not introduced for declaration indicate what the declar that purpose, were indicative of ant's intention, belief, or other men what the testatrix believed the facts tal state at the time was? Re were, and were, as we have said, Arnold, 147 Cal. 583, 82 Pac. 252; competent to show that belief, both Adkins v. Brett, — Cal. — 193 Pac. as against Carson and as against 251. Of course, if, as is frequently anybody else. Nor was it necessary the case, and was the case here, the that the declarations be made in the declarations include or are in the presence

of Carson or any other parform of statements as to past

ty to the litigation. They were not events, the declarations are not com sought to be introduced as admispetent as proof of such events, and, sions, but as evidence of the testaif that is their only bearing, they

trix's belief, and for that purpose are not admissible. This was in were clearly competent. fact the only bearing of the declara

The court also excluded all evitions excluded in such cases as Re

dence of statements by Carson to Calkins, 112 Cal. 296, 44 Pac. 577,

the testatrix as to what his previous and Re Gregory, 133 Cal. 131, 65 matrimonial experiences had been. Pac. 315, referred to by counsel, and Some of the evidence so excluded those decisions go upon that ground. was even as to statements made at In the subsequent case of Re Arnold, the very moment of their marriage. supra, certain declarations which Upon what possible theory such evi

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