Estate of LUTHER BRISTOL, Deceased. AGNES BRISTOL, Appellant, v. EDITH YOUNG, Respondent, 23 Cal. 2d 221

SCHAUER, J. The controlling question on this appeal is the sufficiency of the evidence to support the finding of the trial court that “the deceased never cancelled or destroyed the codicil of April 28th, 1941, and said codicil was in existence at the time of his death.” The contest is purely one of presumptions and inferences. That the codicil was duly executed is established without question but, after the testator’s death, it was never found.

No witness was produced who claimed (or admitted) to have seen such lost codicil after the day of its execution nor, on the other hand, to have seen the testator destroy it or to have heard him declare that it had been revoked. There is evidence which, on the cold pages of the record, appeals to reason as supporting the conclusion that the codicil was destroyed by the testator, but a critical consideration of the entire record impels us to the conviction that the circumstances depicted are not devoid of substantially conflicting inferences.

The rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case. (Estate of Snowball (1910), 157 Cal. 301, 305 [107 P. 598]; Estate of Barr (1924), 69 Cal.App. 16, 33 [230 P. 181].) The rule as to our province is: “In reviewing the evidence ... all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.

It is an elementary . . . principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.” (Italics added.) (Crawford v.

Southern Pacific Co. (1935), 3 Cal.2d 427, 429 [45 P.2d 183].) The rule quoted is as applicable in reviewing the findings of a judge as it is when considering a jury’s verdict. The critical word in the definition is “substantial”; it is a door which can lead as readily to abuse as to practical or enlightened justice.

It is common knowledge among judges and lawyers that many cases are determined to the entire satisfaction of trial judges or juries, on their factual issues, by evidence which is overwhelming in its persuasiveness but which may appear relatively unsubstantial—if it can be reflected at all—in a phonographic record.

Appellate courts, therefore, if there be any reasonable doubt as to the sufficiency of the evidence to sustain a finding, should resolve that doubt in favor of the finding; and in searching the record and exploring the inferences which may arise from what is found there, to discover whether such doubt or conflict exists, the court should be realistic and practical. Upon such view of the law we cannot hold that any essential finding in this case is unsupported. Appellant-contestant relies upon the rule stated in

section 350 of the Probate Code that “No will shall be proven as a lost or destroyed will unless proved to have been in existence at the time of the death of the testator, or shown to have been destroyed fraudulently or by public calamity in the lifetime of the testator, without his knowledge,” and upon the presumption which has been declared by this court (Estate of Sweetman (1921), 185 Cal. 27, 28 [195 P. 918]; Estate of Johnston (1922), 188 Cal. 336, 340 [206 P. 628]), and which is well stated in 26 California Jurisprudence 807,

section 141, that “Where the evidence shows that the instrument cannot be found, and that when last seen or known to exist it was in the custody or possession of the decedent, the conclusion of law is that the writing was destroyed by the decedent, and that he acted with the intention of effecting a revocation thereof.” Presenting the other side of the controversy, respondent calls attention to the legal proposition that the burden of proof was on appellant-contestant and urges that the circumstances shown are sufficient to at least balance, and therefore to overcome, the presumption invoked by appellant, through raising inferences that the decedent never destroyed or revoked the codicil, that he believed at the time of his last illness that it was still in existence, and that in fact it was in existence at the time of his demise.

It should be noted that the above-quoted presumption which is relied upon by appellant-contestant is qualified by the further statement in 26 California Jurisprudence at page 807, in

section 141, that “Nothing else appearing, the admission of the writing to probate as a lost or destroyed will must be denied. However, the proponent may secure the admission .of the instrument by presenting evidence which rebuts the conclusion or presumption that arises from the facts of possession by the decedent and loss or disappearance. . . .

It follows that the proponent is entitled to a favorable decree where he presents evidence showing that it is equally probable (1) that the will was destroyed by another person than the decedent, or (2) that the act was not done with an intention to revoke the instrument.” (Italics added.) The mooted codicil was referred to by the parties throughout the trial as the “lost codicil” and will be so designated in this opinion. Viewing the evidence in aspects most favorable to sustaining the attacked finding (Von Breton v. Hicks (1942), 55 Cal.App.2d 909, 912 [131 P.2d 560]), the facts appear as hereinafter narrated.

Luther Bristol successfully raised a family of five children, including four sons and one daughter, Edith Bristol Young, the respondent-proponent herein, and accumulated a modest fortune. Late in life, apparently having lost his first wife, the mother of his children, he took to wife Agnes Bristol, many years his junior. This latter marriage did not produce an altogether harmonious union.

It was punctuated by a separate maintenance action filed by Agnes, by a cross-complaint for divorce filed by Luther, by an amended complaint on the part of Agnes also seeking a divorce, and by a rescission suit instituted by Luther in which he sought to recover from Agnes certain income-producing real property which he had deeded to her. The divorce litigation ended in an impasse in which neither party was granted a decree and the rescission action was dismissed in reliance upon a false representation by Agnes which will shortly be referred to again.

The principal result of the controversy being litigated is the determination of whether Agnes, the widow, or Edith, the daughter, shall administer the affairs of the estate, and whether a crippled granddaughter, Rita, who appears to have been definitely in Luther’s affections, shall inherit a share of the estate. Luther died on September 30, 1942, at an age of more than ninety-three years.

Three testamentary documents are involved in the proceedings: (1) a “Last Will and Testament of Luther Bristol,” dated April 1, 1938, executed when the testator was approximately ninety years of age (and apparently shortly after the marriage to Agnes, the exact date of which does not appear); (2) a “Codicil to My Will Dated April 1, 1938,” itself bearing the date of July 28, 1939; and (3) the lost codicil, dated April 28, 1941. Another instrument, admittedly lacking testamentary competence, was found typed on the first codicil.

It was prepared and typed by a notary public who thus futilely assumed to engage unlawfully in the practice of law, but aside from some possible evidentiary value in the proof of intent—which the trial court found nonpersuasive—it has no significance here. There is no contest as to the will of April 1, 1938, nor as to the codicil of July 28, 1939. The issue is joined solely as to the codicil of April 28, 1941—the “lost codicil.” And it is not as to the fact of its original due execution but only as to the fact of its existence at the time of Luther’s death that there is conflict.

By the original will of April 1, 1938, Agnes, the newly ■ acquired wife, was nominated executrix without bond, she was devised certain income-producing real property improved with a four-unit flat building and a single family residence, and, with the testator’s children, was made a residuary legatee. The codicil of July 28, 1939, revised the original will (of April 1, 1938) only as to provision for the testator’s son Walter and Ms granddaughters Ruth and Bernice Olsen.

It does not affect the interests of either Agnes Bristol or Edith Bristol Young and has no significance in the litigated controversy except as it may tend to depict the scrupulous care and concern which the testator manifested for his own children and their children. The lost codicil (of April 28, 1941), however, effects substantial changes in the testamentary plan. Subsequent to execution of the original will of April 1, 1938, and the first codicil of July 28, 1939, Mr.

Bristol had deeded to Agnes the real property which had been the subject of his testamentary devise to her, and he had learned that Ms beloved granddaughter, Rita Fox, was not deceased, as had been believed at the time of execution of the earlier documents. (Rita had disappeared and remained absent from her family without communicating with them for an extended period; she returned prior to executibn of the lost codicil.) The lost codicil revoked the provision of the original will devising to Agnes the subsequently deeded property, revoked the nomination of Agnes to act as executrix without bond, nominated Edith Bristol Young as executrix in place of Agnes, and added the name of Rita Fox (daughter of the testator’s son Walter Bristol) to those of the granddaughters designated in the codicil of July 28, 1939, to share in the remainder of the limited devise to Walter.

The original will also made testamentary disposition of certain parcels and items of property to the several children and various grandchildren, and it appears that deeds conveying the real property to the children in general accord with the testamentary plan were also prepared and signed but were not delivered during the testator’s lifetime. Such deeds, together with the original will and first codicil (and the abortive attempt at a codicil typed on the first codicil by the notary public) were found in the testator’s safety deposit box after his demise.

The lost codicil, so far as appears, was never placed in the safety deposit box. It was last seen, so far as claimed or admitted by any witness, at the time the testator placed it in his pocket after its execution. The evidence tends to show that Mr. Bristol, after executing the lost codicil, never changed his mind as to providing for Rita, the returned granddaughter, or as to revoking the devise of the income property which had been deeded to Agnes, or as to appointing the daughter, Edith Bristol Young, as executrix. Mr. Bristol apparently was of sound and disposing mind up to within a few hours of his death.

Until a few days before his passing, Mr. Bristol kept on his body a money belt in which he had deposited $5,950. This money at that time, in his presence, by his direction, and in the presence of others of the family, was handed to Mr. Charles G. Young, the husband of Edith, and a member of the bar, for safekeeping. While no oral statement was made specifying in words that this money was entrusted to Mr. Young because his wife (Mr. Bristol’s daughter) Edith was, by the terms of the lost codicil, to be the executrix of Mr.

Bristol’s will, the reticence of those participating in the conversation to speak bluntly concerning such matters at that time is easily understandable and the inference which the trial judge drew from the circumstances, to the effect that such was the object, the intent, and the understanding of the parties, is a reasonable one.

It is noteworthy that the petition for probate of the lost codicil expressly charges that such lost codicil “has never been revoked and was in existence at the time of the testator’s death, but was destroyed and petitioner alleges on information and belief that said codicil was destroyed by Agnes Bristol, the surviving wife of the deceased.” (Italics added.) Nowhere in the record does it appear that Agnes as a witness expressly or specifically or directly denied this charge. There is testimony that at a time eight days before Mr.

Bristol’s death, during his last illness, and after members of his family had been called to his bedside, Agnes said “if she could ever get her fingers on the will and the deeds she would tear them all up except Walter’s.” That Agnes had knowledge of the lost codicil, and of its contents and potential effect, is established. Mr. Bristol himself, in the presence of his attorney, told her that he had “changed” his will and that “Edith is going to be the executrix.” He said to her: “Why, Mrs. Bristol, you would not put a loan on this property? ...

I have given you that, and that is all you are going to get out of my estate . . . I have told you that I have changed my will, and, that Edith is going to he the executrix, and that you are to have the property to provide for yourself the rest of your life ... If you are going to malee a loan on that property, I will not permit Mr. Lake to dismiss this case.” (Italics added.) While some of the testimony of Agnes appears to have been positive and emphatic to the degree of the dramatic, that pertaining to her knowledge of the lost codicil apparently was neither positive nor convincing to the trial judge.

By way of illustration the following questions and answers are informative : ‘Q. And did you ever see either in my office or in the' possession of Mr. Bristol or about the home of yourself and Mr. Bristol, a codicil to his will which had been prepared by me? “A. I don’t think I have, Mr. Lake. “Q. In other words, as far as you now recall you never saw that document at any time? “A.

I do not think so.” (Italics added.) To an extent seldom seen in a record, that before us in this case discloses on the part of Agnes Bristol, as a witness, an apparent determination to evade direct and forthright answers to pertinent questions. Repeatedly, through many pages of transcript, the trial judge is shown to have patiently and diligently, and by necessity, admonished her to answer directly and responsively material questions properly addressed to her. The recitals as to money and property which Agnes procured from Mr.

Bristol at the time of and after her marriage to him, and the method she employed on one occasion, leave no doubt as to the legal sufficiency of the evidence to support a possible conclusion of the trial judge that the procurement of money and property from Mr. Bristol was a motivating influence in Agnes’ life and that she would not necessarily permit compunctions of honesty to deter her pursuit of the end sought. The title to the income property which Mr. Bristol deeded to Agnes was clear and apparently he was insistent that it be kept clear of encumbrances.

She also promised that she would not sell the property. When questioned as to whether she had falsified to Mr. Bristol concerning the procurement of a loan on this property contrary to his admonitions, Agnes at first denied that she had placed an encumbrance upon it. She testified, “I did not, I sold it, I didn’t put a loan, I sold it.” The following questions and answers then appear: “The Court: The question is, did you tell your husband that you were or were not putting a loan on it, what did you tell your husband about a loan? “A.

I put a loan on first, and then I saw that I would lose the property, I could not make expenses and I sold it. “Q. By Mr. Lake : . . . My question is, at the time that you came to my office for me to sign this dismissal, when I told Mr. Bristol that you were trying to put a loan on the property, isn’t it a fact that you turned to him and said, ‘I am not, I have no intention of putting a loan on this property’? “A. Well, I did not at that time, because there was already a loan on it, Mr. Lake. “Q. I am not questioning whether or not there was a loan, did you tell Mr.

Bristol that you had no intention of putting a loan on this property? “A. Yes.” The object of the deceit disclosed by the above-quoted questions and answers becomes the more apparent upon mention of the fact that, as disclosed by the record, the object of the call of Agnes and Luther Bristol at the office of his attorney, when the quoted conversation took place, was to secure a dismissal of the rescission suit which had been filed by Mr. Bristol and which clouded the otherwise clear title of Agnes to the property.

Agnes’ application for a loan on the property was then pending and the title company had requested the dismissal of the suit with its accompanying notice of lis pendens. Mr. Bristol had no knowledge of the real object of Agnes in seeking the dismissal, and in reliance upon her disavowal of intent to hypothecate the property, instructed his attorney to dismiss the suit. The dismissal was filed. The loan was effected. Concerning the subsequent sale of the hypothecated property the testimony of Agnes is on the same plane.

She at first asserted that she had sold it for “about $4000” and under the probing of cross-examination finally admitted receiving a price of $5,500 for it. Her testimony concerning the regard and intentions of Mr. Bristol for his granddaughter Bita is also enlightening. It will be recalled that neither in the original will nor in the first codicil was any provision made for Bita, it being believed that she was no longer living. Only in the lost codicil, executed after her return, does her name appear. The significant testimony is. as follows: “Q. Did you ever hear Mr.

Bristol say anything about Rita Fox, that he wanted her to be a beneficiary under his estate? “A. She is one of his granddaughters. “Q. That is not what I asked you, did you ever hear him say that he wanted her to participate in the distribution of his estate? “A. Yes, sir. ‘ ‘ Q. And you also heard the conversation that he had with his daughter, Edith, before his death, in which he told her, and there was some discussion about him including Rita as a beneficiary in his estate, wasn’t there? “A. Yes. “Q. And he mentioned the fact that he had included her as one of the beneficiaries, didn’t he? “A. Sure. “Q.

And you knew that right up to the time of his death, that that was his thought and that was his desire, that Rita would benefit, isn’t that right? “A. Well, she is his great-granddaughter [sic].” The above-quoted testimony obviously depicts a state of mind of the testator which the trial judge could well have concluded was consistent only with the lost codicil’s being, in Luther’s belief, unrevoked and potentially operative.

There is other evidence in the record, cumulative or corroborative in effect, which likewise tends to show the propensities of Agnes Bristol and the interests of Luther Bristol, but enough has been delineated to require us to hold that the determination of the trial court was based on substantially conflicting inferences and hence is conclusive. The judgment of the trial court is affirmed. Gibson, C. J., Shenk, J., and Carter, J., concurred.