HELEN D. GRIDLEY, Administratrix of the Estate of George W. Gridley, Deceased, v. JOHN BOGGS et al., 62 Cal. 190

McKinstry, J.: The action, commenced by George W. Gridley in his lifetime, is prosecuted by plaintiff, appellant, as the administratrix of his estate, to obtain a decree setting aside a deed made by him September 4,1879, to certain of the defendants (John Boggs, E. B. Pond and C.W, Clarke), and also an accompanying contract executed by them declaring trusts in favor of named creditors of said George W. Gridley and one D. M. Reavis. The complaint alleges that for more than five years next before the first day of December, 1880, George W.

Gridley was continuously feeble and diseased in body, and feeble and weak and unsound in mind, and by reason thereof during all that time “wholly incompetent to transact business.” That during such five years all the defendants had full knowledge of said Gridley’s feeble and diseased condition of body, and his said weak and unsound condition of mind, and that he was so as aforesaid “wholly incompetent to transact business.” That during said five years prior to December 1, 1880, and while the said defendants Boggs, Pond, Clarke and Reavis were each and all of them fully cognizant of said George W.

Gridley’s said weak, feeble and diseased condition of body and his said weak, feeble and unsound condition of mind, “and of his said incompetency to transact business,” they conspired, confederated and colluded together to take an unfair and fraudulent advantage of him, “while in his said feeble and diseased condition of body, and while in his said weak, feeble and unsound condition of mind, and while he was so incompetent to transact business, to wrong, cheat, and defraud him out of his said property” (previously described), “and to that end, and with that intent, they wrongfully, fraudulently and falsely represented to said George W.

Gridley that he was liable to pay to said Boggs, Pond, Clarke, and to certain other of the defendants, moneys due to them on certain promissory notes, all, or nearly all, signed by him and by said D. M. Reavis,” etc. The fraud charged upon the defendants especially named is, that taking advantage of the weak, feeble and diseased condition of the mind of George W. Gridley, and of his consequent incapacity to protect his own interests, they induced him, by false representations, to execute the deed and enter into the contract sought to be annulled.

The representations alleged to have been made to Gridley (with the exception, perhaps, of the alleged representation that Reavis had conveyed all this property to Boggs, Pond and Clarke, in reference to which the Court below found upon evidence that no such representation was made, but, to the contrary thereof, that the fact as to conveyance from Reavis to Boggs, Pond and Clarke was stated to Gridley), had relation to matters in respect to which he was fully informed, and must have acted responsibly, provided he was a person of sound mind.

The Court below found: “For the five years next before the first day of December, 1880, the plaintiff’s intestate, George W. Gridley, was not either feeble or diseased in body, or feeble, or weak, or .unsound in mind, and was not during all, or any portion of that time, incompetent to attend to, manage or transact business, but, on the contrary, was during all said time and up to the time of his death of sound, healthy and vigorous and unimpaired condition of mind and body, and fully competent to transact business.” It is admitted that as to this finding, there was a substantial conflict in the evidence.

In argument counsel indulged in much criticism, some of it perhaps just, of the findings. It is obvious, however, in presence of the explicit findings that Gridley was of sound mind, and further, that defendants practiced no such arts or devices as constitute fraud when practiced upon a person of sound mind, the judgment must be affirmed, unless -errors occurred at the trial. It is contended that the Court below erred in sustaining the objection to the hypothetical question propounded by plaintiff’s counsel on cross-examination to the expert witness, Dr. C. F. Buckley. Dr. P. B. M.

Miller, an expert witness called on behalf of the plaintiff, had testified that he had made a post mortem examination of the body of George W. Gridley, and as to the condition of the brain, pelvic viscera, and particularly the kidneys and bladder, and the prostate gland and the urethra; that he had found nitrate of urea in crystals in washing the membranes of the brain, and crystals of urea in the arachnoid sac, etc.

That the kidneys were apparently in the normal state, except that they were engorged with blood; that the membranes of the brain, the pia mater, the arachnoid and dura mater were “thickened, discolored, adherent, and matted together.” That the prostate gland was enlarged, thickened, and indurated and its walls pressed together.

In his opinion the deceased must have been of unsound mind for five or six years prior to Ms death, by reason of the facts that the condition of the prostate gland had obstructed the elimination of urea, causing it to enter in the circulation and poisoning the branial membranes, and that the patient died of uraemic convulsions thus produced; that the thickened condition of the brain coverings established insanity, and that the thickening produced by the chronic uraemic poisomng must have been gradual, continuing several years. In his direct examination on behalf of defendants, Dr.

Buckley, after stating that he had been a practicing physician and surgeon since 1864, that he was a graduate of certain medical schools, and that he had been superintendent for about two years of an insane asylum in Lancashire, England, proceeded to testify in effect that he had never known crystals of urea to be found in the brain or any of its surroundings; that nitrate of urea is perfectly soluble in water; that uric and urea are specifically different.

He added, that taking the condition of the coverings of the brain and the brain itself, and of the kidneys, the bladder, the prostate gland and the urethra, as described by Dr. Miller (and Dr. Caldwell, who assisted at the post-mortem), he could not understand how any such condition of his brain or its membranes could be attributed to uraemic poisomng, without disease of the kidneys antedating it, and declared that disease or unsoundness of mind could not be predicated on the condition of the coverings of the brain as described by Messrs. Miller and Caldwell.

It is apparent from the foregoing that the testimony of Dr. Buckley was addressed to the contradiction of the theory of Dr. Miller, that the diseased condition of the membranes of the brain was produced by slow uraemic poisoning, and such condition indicated insanity in Gridley, which extended backward from his death to a period of time including the acts alleged to have been done by him while incompetent to protect his business or other interests.

It is disputed between counsel for the respective parties whether there was any evidence in the case tending to prove some of the facts assumed to exist in the hypothetical question propounded, on the part of plaintiff, upon the cross-examination of Dr. Buckley, the sustaining of the objection to which by the Court below is now here urged as error.

After such examination as we have been able to give the enormous transcript of nearly six thousand folios, made up to a great extent of the questions and answers contained in the short-hand reporter’s notes—and we consented to hear the appeal upon the unnecessarily voluminous record only out of consideration for the important interests involved—we are not prepared to say but there is to be found in it some evidence tending to prove the existence of each of the facts assumed in the question.

But the objection that the question could not be asked in accordance with any legitimate rule of cross-examination was , properly sustained. The burden of showing that George W. Gridley was insane when and before the instruments were executed, was cast upon the plaintiff. Taking up the burden and in making out her affirmative case, plaintiff, in addition to other evidence, had propounded a series of hypothetical questions to expert witnesses called on her behalf. The question put to Dr.

Buckley was of the same character, and in substance the same as one put to plaintiff’s witnesses, and his answer, if it sustained plaintiff’s views, would have constituted part of plaintiff’s case, which should have been made out before she rested. His direct examination had been limited to the expression of his opinion as to the correctness of the theory of Dr. Miller, one of plaintiff’s witnesses, a theory based upon certain conditions of the bodily organs as the same appeared at the post-mortem.

The question put by plaintiff was much broader than was justified by the matters drawn out on the direct examination. Nor can the question be justified as testing the capacity of the expert. If the answer of Dr.

Buckley had been the same as that given by plaintiff’s experts, it would have strengthened the plaintiff’s affirmative case; if it had been different it would no more tend to prove the incompetency of Buckley than it would tend to prove the incompetency of the experts called by plaintiff Appellant also claims the Court below erred in sustaining defendants’ objection to plaintiff’s offer to introduce in evidence a document filed in the Superior Court on the fourteenth day of March, 1881, purporting to be the last will and testament of George W.

Gridley, deceased, together with the objections to the probate of the same by Charles W. Gridley and Flora D. Harris, and the Court’s findings of fact and conclusions of law thereon, and the decree of said Court thereon rejecting said will, “and deciding that said George W. Gridley was unsound in mind and incompetent by reason thereof to make a will at the date of the execution thereof, to wit, March 26, 1879.” It is said the judgment was conclusive as to Gridley’s mental condition, or was at least prima facie evidence of his mental condition on that day.

Section 1908 of the Code of Civil Procedure reads: “The effect of a judgment or final order in an action or special proceeding before a Court or Judge of this State or of the United States, having jurisdiction to pronounce the judgment or order, is as follows: 1.

In case of a judgment or order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition of a particular, person, the judgment or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person.” With respect to a judgment in a proceeding de lunatico inquirendo it was said in L’Amoureux v.

Crosby (2 Paige Ch. 427), that as to the acts done by the lunatic before the issuing the commission, and which were overreached by the retrospective finding of the jury, the inquisition is only presumptive but not conclusive evidence of incapacity. It would seem that as to acts done after the finding, the inquisition, in the absence of the statute, would be only presumptive evidence. (Van Deusen v. Sweet, 51 N. Y. 386; Rider v. Miller, 86 id. 511; Gibson v. Soper, 6 Gray, 285-6; Rippy v. Gant, 4 Ired. Eq. 443; Griswold v. Miller, 15 Barb. 523, and cases there cited.) But there can be no doubt, that, under the

section of the Code of Civil Procedure above quoted, the judgment in a proceeding whose direct purpose and end is to obtain a determination “of the personal, political, or legal condition of a particular person” is conclusive upon such condition. Was the judgment rejecting the will such a judgment? Mr.

Starkie says: “ In many instances a court possesses a jurisdiction which enables it to pronounce on the nature and qualities of the particular subject-matter, where the proceeding is, as it is technically termed, in reto; as where the Ordinary or Court Christian decides upon a question of marriage or bastardy; or the Court of Exchequer upon condemnations; or the Court of Admiralty upon questions of prize, or a Court of Quarter Sessions upon settlement cases.

Decisions of this sort are for the most part binding and conclusive upon all the world.” (Starkie Ev., p. 36, 10th Am. ed.) Such a judgment is conclusive unless impeached for fraud, on those who were neither parties nor privies to it. (Id. 384.) And the reasons given by Professor Greenleaf are: “ These decisions are binding and conclusive, not only upon the parties actually litigating in the cause, but upon all others; partly upon the ground that in most cases of this kind, and especially upon cases of property seized or proceeded against, every one-who can possibly be affected by the decision has a right to appear and assert his own rights, by becoming an actual party to the proceedings; and partly upon the more general ground of public policy and convenience, it being essential to the peace of society that questions of this kind should not be left doubtful,” etc. (1 Green.

Ev., 525.) If the defendants in the present cause are bound by the judgment of the Superior Court, as being a judgment declaring George W. Gridley to have been insane at the date of the offered will, it must be upon “ the more general ground ” mentioned by Mr. Greenleaf. Certainly all those who might be affected by a judgment that Gridley was insane when the will was executed, did not have the right to appear and assert their rights in the proceeding for the probate of the will. The legal notice of that proceeding ran only to those interested in Gridley’s estate.

And as to “the more general ground,” public policy only requires, at most, that a judgment as to the status of a particular person, which shall be conclusive as against those not parties to it, shall be a judgment which simply determines such status in a proceeding whose sole end and aim is to determine it. The judgment of the Superior Court determined that a certain instrument, purporting to be the last will and testament of George W. Gridley, was not his last will and testament. The proceeding was not a special inquiry to determine his status as to sanity or insanity.

The finding of insanity was of a probative fact upon which the Court held the will to be invalid, as it might have held it to be invalid upon proof of duress or undue influence. If there remains doubt of the correctness of this conclusion, it should be dispelled by the wording of the

section of the Code of Civil Procedure. There a judgment “ in respect to the probate of a will ” is spoken of as a separate and distinct thing from a judgment “in respect to the personal, political, or legal condition or relation of a particular person.” It would be difficult more explicitly to declare that a judgment in respect to the probate of a will should be evidence that the offered instrument had been rejected or admitted to probate— that it was or was not the last will and testament of the decedent—neither more nor less. We find no substantial errors in the record. Judgment and order affirmed. Eoss and McKee, J.J., concurred.