Opinion
12-12-1957
In the Matter of the ESTATE of Juliana Matilda FLETCHER, also known as Mabel Fletcher, Deceased. Margaret J. Loftus and William W. Loftus, Proponents and Appellants, Montez lone Oakes, Contestant and Respondent. * Civ. 9198.
Harold J. Thorsen, St. Helena, for appellants. Francis H. Frisch, Napa, for respondent.
In the Matter of the ESTATE of Juliana Matilda FLETCHER, also known as Mabel Fletcher, Deceased.
Margaret J. Loftus and William W. Loftus, Proponents and Appellants,
Montez lone Oakes, Contestant and Respondent. *
Dec. 12, 1957.
Hearing Granted Feb. 5, 1958.
Harold J. Thorsen, St. Helena, for appellants.
Francis H. Frisch, Napa, for respondent.
SCHOTTKY, Justice.
Appellants, Margaret J. Loftus and William W. Loftus, sister and brother of the above-named decedent, filed a petition for probate of the will of decedent and for the issuance to them of letters testamentary. The will was typewritten and bore the signature of decedent and two witnesses, the latter two signatures following a formal attestation clause. The will left three-fourths of the estate to 2 sisters and 2 brothers of decedent, and one-fourth to 2 nephews and 3 nieces, one of whom is the contestant.
Montez Ione Oakes, the contestant and a niece of decedent, filed a contest of the will before probate, and for grounds of contest alleged that at the time of the execution of the purported will the testatrix was not of sound and disposing mind; that the offered will was not signed by the decedent nor executed with the formalities required by law, and that at the time of execution the decedent was acting under the undue influence of William Loftus. Appellants' answer denied and material allegations.
The contest was set for trial and came on for hearing before the court, sitting without a jury. Counsel for contestant stated it was his understanding of the law 'that before evidence on the contest proceedings is adduced, the law requires the proponents to make out a prima facie case of due execution of the will.' Counsel for proponents then stated, 'we will put on prima facie proof,' and the court stated: 'Very well; you may proceed.'
Proponents then called William W. Loftus who testified that the will was signed by decedent and by the two subscribing witnesses. The signatures of the witnesses were not disputed. The evidence showed that one of the witnesses, Dwight V. Maurice, was deceased. The other witness, Doris Vroubel, was called as a witness by the appellants and although she admitted her signature to the attestation clause, she testified that the recitals in the attestation clause were not true and that the purported will was not executed with the formalities required by law. She testified that the decedent was in a semi-conscious slumber or coma at the time and that the manner in which the purported will was signed by her was by William Loftus placing a pen in the decedent's hand and directing the signature by holding her hand in his. She testified that the decedent did not know what was transpiring and did not declare it to be her will in any manner. She further testified that she signed as a witness under protest. It was apparent for the testimony of Doris Vroubel that she was hostile to proponent William Loftus, and at one stage of her testimony the court stated, 'She surely is adverse.'
The final page of the reporter's transcript shows the following: 'Mr. Thorsen: Your Honor, in answer to Counsel, of course we have not made out a case that the will is to be admitted to probate, that is to be decided after the whole case is heard. 'The Court: You rest now? 'Mr. Thorsen: On the prima facie case. 'The Court: You rest? 'Mr. Thorsen: Yes. 'The Court: The petition for probate of will will be denied. 'Mr. Thorsen: Well, Your Honor, on that phase, can we proceed just as if,--put on our case as if we were plaintiffs in this matter? 'The Court: You have put on your case and you didn't prove the will was properly executed.'
The court made findings in favor of contestant on all material issues and concluded 'That petitioners for probate of will have failed to make out a prima facie case of due execution of the will.' Proponents have appealed from the judgment entered denying probate of the will.
Appellants contend that as proponents of the will they made out a prima facie case of due execution of the will and that the trial court should then have reserved its decision upon the petition for probate and should have directed the contestant to proceed with her case. Appellants cite In re Estate of Latour, 140 Cal. 414, at page 438, 73 P. 1070, 74 P. 441, at page 442, in which it is stated: '* * * This preliminary proof is addressed to the court alone. If a jury has been called to try the issues arising upon the contest, the preliminary proof is for the court, and not for the jury, unless the court directs the contrary, or the parties treat it as part of the case for the jury. If, after hearing this proof, the court is of the opinion that a prima facie case is made in support of the will, it should reserve its decision upon the petition and direct the trial to proceed upon the contest in the manner specified in section 607 [of the Code of Civil Procedure]: the contestant, as plaintiff, first introducing his evidence in support of his written grounds of opposition, and the proponent, as defendant, then producing his evidence in support of his answer thereto, and in rebuttal of the evidence on behalf of the contestant. If the preliminary proof does not satisfy the court, it should thereupon refuse probate and end the proceeding without further ceremony.'
Appellants argue that by proving the signatures of the testatrix, the deceased witness and the only living witness, who was adverse, they made out a prima facie case of due execution of the will. They rely heavily on In re Estate of Pitcairn, 6 Cal.2d 730, at page 732, 59 P.2d 90, at page 92, in which the court said: 'We have, then, a case where the signatures of the testatrix and subscribing witnesses are genuine; the will is attested, but lacks a formal attestation clause reciting the steps in execution; the attesting witnesses, seemingly adverse but uncontradicted on the essential issues, testify to a technical failure to comply with the formalities of execution. In such a case, may the trial court admit the will to probate? We think it may. 'The rule is well established that a regular and complete attestation clause makes out a prima facie case of due execution of the will. The authorities have clearly recognized that where witnesses are dead, unavailable, or unable to testify or recollect, or are adverse or corrupt, it is necessary to rely upon other evidence of the sufficiency of the instrument, and accordingly have applied the above-mentioned presumption. See, generally, Hawkinson v. Oatway, 143 Wis. 136, 126 N.W. 683, 139 Am.St.Rep. 1091; In re Sullivan's Will, 114 Mich. 189, 72 N.W. 135; Rood on Wills, 2d Ed., § 798a, p. 822; note, 76 A.L.R. 617. It is sometimes suggested that the recitals in the attestation clause furnish the basis for the presumption, so that the court in upholding the will against contradictory evidence is really making a finding from the declarations in the instrument. Following this theory contestants seek to limit the presumption to cases where a full attestation clause is contained in the will. 'In our view the distinction thus drawn is illogical and the rule is too narrow. There is no need of an 'attestation clause'; it is sufficient that a will be witnessed or attested, and the recital of the steps in execution is not required. 68 C.J. 711, § 392. It does not seem reasonable, therefore, to have the important presumption of due execution turn upon the presence or absence of this unnecessary provision. The foundation of the presumption is the proof of genuineness of the signatures, for the instrument is then on its face a valid will. Doubtless recitals in an attestation clause are entitled to greater weight, but the logical basis for the presumption, as well as its practical necessity, is the same whether or not there is such a clause. This view has the support of a number of authorities. [Citing cases.] * * * * * * 'The contestants herein seek to distinguish most of the cases applying the presumption in the absence of an attestation clause on the ground that the witnesses were either not present or unable to recall the facts. They contend that even if the presumption is applicable to those situations, the presence of subscribing witnesses who give adverse testimony destroys the presumption. But in our opinion, if the presumption be recognized, it is seldom material to an appellate court whether the subscribing witnesses were unavailable, unable to remember, or gave affirmative testimony adverse to the will. A presumption is recognized in this state to be independent evidence which may be weighed against positive testimony, and in a proper case the lower court may follow the presumption of due execution from proof of genuineness of the signatures, though the witnesses attack the will.'
In Re Estate of Braue, 45 Cal.App.2d 502, at page 505, 114 P.2d 386, at page 387, the court said: 'On this testimony, the trial court found that the will was duly and properly executed, the admitted it to probate. Appellants urge that the uncontradicted evidence of two of the three subscribing witnesses establishes that the testator did not sign or acknowledge his signature to the document in the presence of two of the subscribing witnesses, nor declare to the witnesses that it was his will, nor did the witnesses sign in the presence of each other. Appellants admit that upon proof of the signatures of the testator and of the subscribing witnesses a rebuttable presumption of due execution arises. This presumption arises whether or not the will contains an attestation clause, but certainly arises where, as in the instant case, such a clause is contained in the will. In re Estate of Pitcairn, 6 Cal.2d 730, 59 P.2d 92; In re Estate of Kent, 161 Cal. 142, 118 P. 523; In re Estate of Tyler, 121 Cal. 405, 53 P. 928. Appellants urge, however, that where the attesting witnesses are all before the court and testify to facts that demonstrate that the will was not properly executed, the presumption has no place in the case and will not support a finding of due execution. 'This contention is unsound. The trial judge saw and heard the witnesses. He, as the trier of the facts, had the power to pass on their credibility. This court has no such power. Whatever may be the rule in other states, the rule in this state is that a disputable presumption, whether contradicted by other evidence or not, will support a finding. A disputable presumption does not go out of the case when contradicting evidence is introduced, if the trier of the facts does not believe that contradicting evidence. Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529. This rule has been applied to the very presumption involved in folding 8 X 13 paper twice. * * * supra, the two subscribing witnesses, both called by the proponent, testified that the will was not properly executed. There was no evidence to the contrary. There was no complete attestation clause. The trial court admitted the will to probate. In affirming the order admitting the will to probate the Supreme Court stated (page 732 of 6 Cal.2d, page 92 of 59 P.2d):'
The court then quoted extensively from In re Estate of Pitcairn and said, 45 Cal.2d at page 506, 114 P.2d at page 388: 'This case is decisive of the present appeal. Appellants urge, however, that the rule only applies where the witnesses are unavailable, have forgotten the facts, or where the witnesses are hostile, guilty of connivance, or are unworthy of belief. Of course, it is a general rule that the trier of the facts is the sole judge of the credibility of the witnesses, and may generally disregard even uncontradicted evidence. Kelly v. Jones, 290 Ill. 375, 125 N.E. 334, 8 A.L.R. 796.'
Respondent in reply relies chiefly on In re Estate of Krause, 18 Cal.2d 623, 117 P.2d 1, and argues that it is determinative of the instant appeal. The cited case was an appeal from an order admitting a will to probate. We quote from page 624 of the opinion in 18 Cal.2d, at page 1 of 117 P.2d: 'On the hearing of the cause the testimony of a subscribing witness, Mrs. Frizelle, furnished practically the only evidence showing the circumstances surrounding execution of the instrument. This testimony, in substance, was embodied in findings of the court, from which the following is quoted: "On or about the 25th day of March 1929, Orrie Emma Krause telephoned next door to Mina H. Cullinan and asked her to come over with Mrs. Frizelle and witness a will; and Mrs. Frizelle at the request of Mrs. Cullinan went over to Mrs. Krause's home with her to witness a will. Mrs. Krause did not say anything about her will when said witnesses arrived in her presence to witness a will, other than: 'There is the pen and ink, sign it.' Said paper was folded so that the signature thereon, if any, could not be seen. The only creases appearing on the sheet at time of trial were the usual ones, made by folding 8 x 13 paper twice. * * * Orrie Emma Krause did not sign said will in the presence of said witnesses, nor declare or acknowledge to them, or either of them, that it was her will or that she had subscribed said will.' From the facts so found the court concluded as a matter of law that the purported will 'was executed in accordance with the requirements of law (In re Estate of Pitcairn, 6 Cal.2d 730, 59 P.2d 90), and it should be admitted to probate'. The order of admission was entered accordingly.'
The Supreme Court reversed the trial court and distinguished the Pitcairn case, supra, by stating that in that case 'There was evidence of an adverse attitude on the part of these witnesses, and the recollection of one of them was untrustworthy.' The court also said, 18 Cal.2d at page 626, 117 P.2d at page 2: 'The factual situation disclosed by the record in the case at bar is not analogous to that of the Pitcairn case. Here the attitude of the subscribing witness was not adverse and her testimony was clear, uncontradicted, and without conflict. It showed positively that the testatrix did not sign the purported will in the presence of the attesting witnesses, and that she neither declared nor acknowledged to them that it was her will or that she had subscribed it. The trial court gave credit to this testimony and made specific findings in accordance with it. The facts so established and the specific findings admitted of no other conclusion than that the will was not executed in accordance with the requirements of law. In the Pitcairn case, uncertain testimony was discredited, findings were made in accordance with the presumption of due execution, and the trial court was entitled to rely upon the presumption in drawing its conclusions of law. In the present case the uncontradicted testimony was credited, the facts were found in accordance with it, and the court was not justified under such circumstances in forming its conclusions in accordance with the presumption but should have based them upon the facts found.'
Respondent states: 'The trial court had the right upon the authority of the [In re] Estate of Krause, supra to accept the testimony of Doris Vroubel as overcoming the presumption of due execution and to make specific findings contrary therewith.' This statement convinces us that respondent has not properly analyzed the decision in Re Estate of Krause, and is also a virtual concession that the presumption of due execution arose in the instant case. For in the very recent case of In re Estate of Gerst, 153 Cal.App.2d 528 at page 538, 315 P.2d 49, at page 56, in which a hearing was denied, the court said: 'As we read the Krause case, 18 Cal.2d 623, 117 P.2d 1, it was not there held that 'the presumption of due execution did not apply where testimony of witnesses showed positively that the will was not executed in accordance with the requirements of the law'. In the Krause case, the trial court found that the testatrix 'did not sign said will in the presence of said witnesses nor declare or acknowledge to them, or either of them, that it was her will or that she had subscribed said will' and that 'said paper was folded so that the signature thereon, if any, could not be seen by the witnesses.' The Supreme Court, 18 Cal.2d at page 625, 117 P.2d at page 2, said: 'These formalities cannot be waived or disregarded'. And at page 626 of 18 Cal.2d, at page 2 of 117 P.2d: 'The trial court gave credit to this testimony and made specific findings in accordance with it. The facts so established and the specific findings admitted of no other conclusion than that the will was not executed in accordance with the requirements of law.' In our opinion, the Krause decision was reversed because the findings in accordance with the testimony of the witnesses did not support the order admitting the will to probate. The rule of the Pitcairn decision, supra, is not changed in any way by the Krause decision.'
In Re Estate of Morey, 75 Cal.App.2d 628, at page 634, 171 P.2d 131, at page 135, the court said: '* * * Proof of the signatures of Mr. Morey and of the subscribing witnesses placed in operation a presumption that the will had been duly executed. In re Estate of Pitcairn, 6 Cal.2d 730, 732, 59 P.2d 90; In re Estate of Braue, 45 Cal.App.2d 502, 525, 114 P.2d 386; In re Estate of Silva, 169 Cal. 116, 120, 145 P. 1015. This presumption was to be weighed with the testimony of the subscribing witnesses as to what took place or did not take place and as to what they remembered or did not remember. The findings that the will was duly executed are not unsupported by the evidence.'
In Re Estate of Pelton, 140 Cal.App.2d 512, at page 515, 295 P.2d 483, at page 485, the court said: 'If the trial court had reached the conclusion that no credence should be given to any of the testimony given by the attesting witnesses it could have admitted the will to probate, basing its finding of due execution solely on the presumption that arises from proof of the signature of the testatrix and the signatures of the attesting witnesses (In re Estate of Pitcairn, 6 Cal.2d 730, 732 et seq., 59 P.2d 90; In re Estate of Braue, 45 Cal.App.2d 502, 505, 114 P.2d 386). The trial court, however, was not obligated to disbelieve the testimony given by the witnesses at the trial, because of their admissions of perjury in their depositions. It was the exclusive province of the trial court to winnow the grains of truth from the chaff of falsehood in the testimony of these witnesses, and its determination of what was true and what was false cannot be reviewed by this court. [Citations.]'
We are convinced that, under the foregoing authorities, appellants in the instant case established a prima facie case as to the due execution of the contested will when they introduced evidence that the will was signed by the testatrix and by the witnesses who subscribed their names following the attestation clause. Upon the introduction of that evidence a rebuttable presumption of due execution arose, and the contradictory evidence of Doris Vroubel did not remove the presumption from the case or justify the conclusion of the trial court that a prima facie case has not been established. The court therefore erred in not ordering the trial of the contest to proceed and the evidence upon all issues of the contest to be completed. Then and only then could the court properly weigh all of the evidence, including the presumption, and determine the issues involved. It may well be that had the trial of the contest been allowed to proceed proponents may have been able to introduce evidence contradicting or casting doubt upon the testimony of Doris Vroubel, but at the outset, and before the contestant introduced evidence in support of her contest, proponents were not required to do more than make out a prima facie case. No case has been cited, and we have found none, where, after a presumption of due execution has been established, the contestant has not been required to go forward with whatever evidence he desired to introduce in support of the contest.
We, therefore, conclude that the court erred in finding that a prima facie case of due execution of the will has not been established and in summarily denying the petition for probate of the will.
The judgment is reversed with directions to the trial court to proceed with the trial of the contest.
VAN DYKE, P. J., and WARNE, J. pro tem., concur. --------------- * Opinion vacated 325 P.2d 103.