Estate of Latour , 140 Cal. 414 ( 1903 )

I dissent. One of the issues made by the contest was as to the due execution, publication, and attestation of the alleged will.

It was shown at the trial that a few days before his death the decedent suffered a stroke of paralysis which rendered him entirely speechless and almost completely helpless, so that his only means of communication with those about him was by signs — as by giving his hand in answer to a question, which was understood to signify assent. While in this condition a lawyer called in by proponent drew up the alleged will in conformity with his understanding of the signs made by decedent in response to questions asked him concerning the disposition of his estate. When the document was completed the lawyer signed it for the deceased, in pursuance of his supposed directions given in the manner above described.

The issue upon the execution of the will was submitted to the jury in the form of three questions, as follows: —

"1. Was the instrument now propounded by Caroline Ford for probate as the last will and testament of Felix Latour, deceased, signed by said Felix Latour?

"2. Was the name of said Felix Latour subscribed to said instrument by some other person, in the presence of said Felix Latour and by his direction; and if so, by whom?

"3. Did the said Felix Latour, at the time of the subscribing of said instrument, declare to the attesting witnesses that said instrument was his will?"

and respecting them the court instructed the jury as follows: —

"Upon the trial of the contest of a will, the contestant is called the plaintiff, and the proponent of the will is called the defendant, — that is to say, in the present proceeding Catherine Latour and the others who are contesting are, in law, the plaintiffs, and Caroline Ford, the proponent of the will, is, in law, the defendant.

"The burden of proof is upon the plaintiffs, meaning the contestants. They must prove the issues of fact by a preponderance of evidence, and the term, as thus used, does not mean numerical preponderance. You are to consider not merely the quantity, but also the quality, of the evidence presented to you."

The contestant requested, and the court refused to give an instruction as follows: —

"The next two questions propounded to you are as to whether or not this alleged will was subscribed by some other person in the presence of the decedent and by his direction, and as to whether or not the decedent declared to the attesting witnesses that the instrument was his will. As to these questions, the burden of proof is on the proponent, and you should not answer them affirmatively, unless facts sufficient for the purpose have been proved, by evidence of a character which produces moral certainty or conviction in an unprejudiced mind."

Other instructions, involving the same propositions, were given and refused, but these which I have quoted sufficiently present the question as to which I am unable to concur in the conclusion of the court.

The decisions heretofore made upon this point have been to the effect that the contestant of a will, merely because the statute designates him as the plaintiff on the trial of the contest (Code Civ. Proc., sec. 1312), must prove not only his affirmative allegations, but must also support his negative allegations by a preponderance of evidence, but in so holding the court, whenever the question has been treated as a matter for serious discussion, or any consideration beyond a mere reference to the previous decisions or dicta, has taken occasion to express its surprise that the legislature should have established a rule of procedure so anomalous and so inconvenient in practice. But while condemning the rule they have felt constrained to follow it, because, and only because, the law has been so written. The truth, however, is that the law is not so written. The important and controlling provision of the statute has been entirely overlooked, and all the decisions based upon a false assumption as to what the law is. A review of the cases in which it has been decided (only two or three), and in which it has been said obiter (two or three others), that the contestant of a will sustains the burden of proof upon every issue raised by the contest, will show that they all depend upon the mere authority of the case of Estate of Dalrymple, 67 Cal. 444, where the point is decided without any discussion whatever, by simple reference to, and indorsement of, a nisi prius decision of Judge Myrick in the Estate of Collins, (Myrick's Prob. Rep. 74). Whatever reason the rule has to support it, therefore, is to be found in that decision of Judge Myrick; for none other has ever been suggested. As the statement of the case and the decision are brief, and the report perhaps not generally accessible, I quote them in full: —

"A paper was offered for probate as the will of deceased. A nephew files objections and contests the probate, on the grounds that deceased did not sign the paper; that the signature is a forgery; that deceased was not of sound and disposing mind.

"A jury was impaneled and sworn to try the issues.

"Without calling any witnesses or offering any proof, contestant claimed that the proponent must, in the first instance, prove the will, before the contestant could be called upon to offer proof. Proponent claimed that the contestant must first make out his case before the proponent could be called upon to reply to it.

"BY THE COURT: Under the last clause of section 1312, C.C.P., the contestant is plaintiff and the proponent is defendant. Under section 607, the trial must proceed in the order, viz.: plaintiff must produce the evidence on his part, and then the defendant may offer his evidence. It may be, as suggested by counsel, that this presents the singular condition that the contestant must prove a negative. An answer is found in the statute; it is so written. The theory of this statute seems to be as follows: A paper is offered as a will; it is contested on any one or more of the statutory grounds; a jury is sworn to try the issues raised by the contest; not to pass upon any other fact. Upon those issues, the contestant is plaintiff. It may happen that a contest is raised as to one only of the statutory grounds, for instance, say not witnessed. That issue is the only issue before the jury, and their verdict will be conclusive upon it. But upon the rendering of the verdict upon that issue the court could not admit the will to probate. The court, not the jury, will hear evidence upon all the points required by the statute not raised by the contest, and admit or reject. In this case, as to all matters involved in the issues raised by one contest, the contestant is plaintiff and must go forward."

The assumption which forms the basis of this opinion that the contestant of a will is plaintiff as to every separate issue made by the contest is either entirely unwarranted by the statute or, if warranted, is entirely inconsequential. The statute (Code Civ. Proc., sec. 1312) does not say that the contestant is plaintiff as to the issues, but only that on the trial of the contest he is the plaintiff. If this makes him plaintiff as to the separate issues, then, upon the same principle, the holder of a promissory note must be the plaintiff as to every issue that can be made in an action on the note; for certainly he is plaintiff on the trial of the action. If, therefore, one is plaintiff as to the separate issues, so is the other, and so is every plaintiff in every action or special proceeding. But assuming this to be so, does the consequence follow that he must "go forward" with his evidence upon every separate issue? Is the assumption, in other words, of any consequence or relevancy whatever upon the question of burden of proof? To this question the statute and numerous decisions of this court plainly answer, No!

Section 607 of the Code of Civil Procedure, cited by Judge Myrick, prescribes the order of procedure upon the trial of an action, and merely says that "The plaintiff, after stating the issue and his case, must produce the evidence on his part." But what is the evidence on his part that he must produce before the defendant is required to proceed? To this question two sections of the same code, which were entirely overlooked by Judge Myrick, furnish an answer utterly at variance with his conclusion. By section 1869 it is provided: "Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party," and section 1981, "The party holding the affirmative of the issue must produce the evidence to prove it; therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side."

The meaning of these rules, and their proper application, is fully illustrated by the discussion of the question as to the burden of proof on the issue of non-payment in the recent case ofMelone v. Ruffino, 129 Cal. 518,¹ in which several of the former decisions of this court in actions upon promissory notes are reviewed. There can in fact be no better illustration of the meaning and due application of section 607 of the Code of Civil Procedure than is offered by an ordinary action upon a promissory note. The plaintiff must allege the making of the note, that he is the present holder, and that it has not been paid. The defendant may deny each of these allegations, or he may admit the making and delivery of the note and deny that plaintiff is the holder or allege payment. In such case, who supposes that at the trial the plaintiff is required by section 607 to go forward upon the issue of non-payment? He makes his case by producing the note or accounting for its loss, and it then devolves upon the defendant to prove by a preponderance of evidence that he has paid it.

The same rule, founded upon the same provisions of the statute (Code Civ. Proc., secs. 607, 1869, 1981), applies to the trial of a will contest. The contestant, being the plaintiff in the proceeding, must prove his affirmative allegations, but he need give no evidence in support of any negative allegation unless such negative allegation is an essential part of the statement of the right or title on which his cause of action is founded. (Sec. 1869) Everything depends, therefore, upon the question whether a will contest is one of those rare and exceptional cases — like an action for malicious prosecution — where the non-existence of a fact (probable cause) is the basis of plaintiff's right. This, it will be seen, is practically conceded in the opinion of the court, where, in order to distinguish the recent and well-considered case of Melone v.Ruffino, 129 Cal. 518,¹ it is held that "the allegations of non-execution were an essential part of the statement of the right on which contestant's cause of action was founded."

Here, then, is the proposition upon which the court, abandoning the grounds of Judge Myrick's decision, and all of our own decisions in which he has been followed, without inquiry or discussion, finds it necessary to base its conclusion.

But is non-execution of a will an essential part of the statement of an heir's right? Or is there any analogy between the allegation of non-execution (or what is the same thing, the denial of execution) and the allegation of want of probable cause in an action for malicious prosecution? On the contrary, the distinction between the two cases is very clear. To prevail in an action for malicious prosecution, the plaintiff must prove not only a prosecution, but the malice of the prosecutor. There is no presumption of malice, but a strong presumption of innocence, and to overcome this presumption the plaintiff must adduce some evidence tending to prove that the prosecution was commenced or carried on in bad faith.

But, in favor of the heir of a decedent, every presumption is against testacy. This has always been the law, and is emphatically the statute law of this state. In the great will case of Delafield v. Parish, 25 N.Y. 35, which was argued by such eminent counsel as Charles O'Conor and William M. Evarts, and in which several elaborate opinions were filed by the different members of the court of appeals, this proposition was upon an extensive review of the authorities established without dissent: "That the heirs of a deceased person can rest securely upon the statute of descents and distributions, and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showingthat the will was executed with the formalities required by law,and by testator possessing a sound and disposing mind andmemory."

Our statute is to the same effect. Every proponent of a will must, among other things, allege its due execution, and even in the absence of a contest no will can be admitted to probate without affirmative proof that it was executed in all particulars as required by law and by a person of sound mind. If a will is contested, stricter proof on these grounds is required, for it is expressly provided by statute that while a will may be established by the testimony of one subscribing witness, if not contested (Code Civ. Proc., sec. 1308), all the subscribing witnesses must be called and examined as to a contested will, unless the death, absence, or insanity of one or more of them is satisfactorily shown. (Code Civ. Proc., sec. 1315.) And before the alleged will can be admitted to probate the court must be satisfied upon the proofs taken or from the facts found by the jury that the will was duly executed and that the testator was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence. (Code Civ. Proc., sec. 1317.) In the face of these provisions, it certainly cannot be claimed that there is a presumption of testacy, and, if not, it is difficult to perceive any reason for requiring the contestant of a will to go forward with proof of that which is presumed in the absence of proof, — viz., that there is no will.

With respect to such issues as insanity, undue influence, fraud, or duress, section 1981 of the Code of Civil Procedure supports the case of the proponent of the will in the same way and for the same reason that it sustains the contestant upon the issue of due execution, publication, and attestation. And, therefore, though the proponent must, in conformity to the rule of pleading, allege soundness of mind and absence of duress, etc., he is exempt by the rule of evidence from the necessity of proving these allegations until some evidence is adduced tending to overthrow the presumption in favor of sanity and against duress, fraud, and undue influence.

Is it, then, an essential part of the statement of the right or title upon which a contestant's cause of action is founded, to allege the non-existence of that which the law presumes not to exist? What is the right or title upon which the contestant's cause of action is founded? If, as in this case, the contestant is an heir his title consists in such relation to the decedent by blood or marriage as gives him the estate or an interest in it, under the law of succession. That is his title, and his whole title, and his cause of action is the establishment of that title. The proponent of the will represents the interest of the devisees and legatees claiming under a conflicting title. As to their respective claims of title, each is an actor, and must prove his claim affirmatively. Prima facie, the admitted heir has the best title, and it must prevail, unless the will is established by affirmative proof of its due execution.

The nearest analogy to the contest of a will is a case of interpleader or of intervention, where several parties are asserting conflicting claims to the same thing, and where each is required to make his own claim good. When a man dies his estate passes under the control of the probate court as a fund for the satisfaction of his creditors and for distribution of the residue to those succeeding to his title. If a will is offered for probate, the court, by its notices and citation, calls upon the heirs, devisees, and legatees to interplead. Any person interested in the estate adversely to the dispositions of the will may contest the probate, and no one else can. (Code Civ. Proc., sec. 1307.) The contestant must therefore allege facts showing that the estate, or an interest in it, devolves upon him as heir or as executor, devisee, or legatee under another will, in case the contested will is not proven. The court, then, has before it two conflicting claims to the same fund, — one by the proponent, and one by the contestant. This fact, and the consequence that necessarily flows from it, — viz., that the proof of the opposing claims must be offered in some orderly sequence, — explains and justifies the provision of the statute that on the trial of the contest the contestant is plaintiff. For his relationship may be contested by the proponent, as it was in this case, and as it frequently is. We have had numerous instances of late years in which the claim of the contestant has been based upon a disputed adoption, or legitimation, or marriage, and these issues have involved long and embittered controversies — their trial overshadowing all other issues in the case. Such instances illustrate the wisdom and propriety of making the contestant the plaintiff on the trial. He must allege his interest in the estate as the basis of his right to contest, and if his interest is denied, he ought to be required to prove it in limine, for in the absence ofprima facie proof on that point the contest would be at an end, and the case of proponent would be heard ex parte. This is the sole and sufficient reason for making the contestant the plaintiff on the trial; that, to maintain a contest at all, he must at the outset prove, if the fact is in issue, that he has an interest in the estate which the contested will would take away or diminish. When he has done this he has made out his cause of action and may, as said by the New York court of appeals in the Parish case, rest secure upon the statute of descents until a will has been proved, and having established his status as an heir, or devisee, or legatee, or executor under a prior will, he may demand strict proof of the execution of the contested will on the part of the proponent before producing his rebutting evidence. To hold otherwise is to impute gratuitously to the legislature the enactment of a law which, as often as it has been so construed, has been pronounced absurd.

If it be claimed that we should adhere to our former rulings simply because they have established a rule of practice, I answer that the principle of stare decisis does not protect a vicious rule of practice, when the utmost evil effect of setting it aside would be to require a new trial of doubtful issues in a few pending cases, and when the advantage would be that in innumerable cases yet to arise the courts and the parties would be freed from the trammels of a rule the mere statement of which involves its condemnation, not only upon the score of convenience, but upon considerations of substantial justice.

But if the rule as we have made it must continue to prevail, with the absurd consequence that when a will is contested, and when the evidence of its execution is doubtful or conflicting, it must nevertheless be admitted to probate, unless the contestant has proved non-execution by preponderating evidence, we should at least assume the blame ourselves, and not continue to lay it on the legislature by insisting that the law is so written. The statute law is plain enough, and entirely consistent with a course of procedure in the trial of a contest utterly at variance with that adopted in this case. Reading the statute, I should have no difficulty in determining that the proper procedure at the trial would be to require the proponent in the first place to establish the jurisdictional facts, — i.e. the death of the alleged testator, his residence, etc., — for the failure to establish these facts would put an end to the proceeding without the necessity of any proof whatever on the part of the contestant. If the jurisdictional facts are proved, the next step is to impanel a jury, if a jury has been demanded, and to hear proof of the interest of the contestant in the estate; for if there is a failure of proof on this point, the contest is at an end, and the case of the proponent will be heard ex parte by the court. If the contestant establishes prima facie a sufficient interest in the estate, the proponent must then put in his case in support of the will, — that is, he must prove what the law requires the court to find in order to admit the will to probate. To establish its execution he must offer the positive and direct evidence necessary for that purpose. To prove soundness of mind, absence of undue influence, etc., he may rely upon the presumption against insanity or undue influence, where it is not overcome by the evidence given upon the direct or cross-examination of the witnesses called to prove the execution of the will. When the proponent has thus made his prima facie case, the contestant may introduce evidence of fraud, undue influence, or insanity, — the issues as to which the presumption is against him, — and this evidence the proponent may rebut.

This reasonable course of procedure — a procedure perfectly consistent with the code provisions, and the same that is pursued in other jurisdictions and in all analogous cases — was widely departed from in the trial of this contest. No evidence as to the residence of the decedent in San Francisco seems to have been offered until a week after the trial of the contest was ended and the verdict of the jury recorded. The evidence as to the claim of the contestant to be the widow of the decedent came in at the end of the trial, and this issue, though made by the pleadings, was never submitted to the jury or found by the court. And, finally, the jury were instructed that they must find that the will was duly executed, unless the contestant had proved by a preponderance of evidence that it was not duly executed.

As to the question of decedent's residence at the time of his death, I think the finding is against the evidence, which showed without conflict that he had been actually living in Lake County for about a year, and that he had, for the purpose of voting, sworn that he was a resident of that county. And in view of the fact that no attempt to prove him a resident of San Francisco was made until a week after the verdict of the jury had been rendered, I think it is hardly to be imputed to contestant as a fault that he did not object to the sufficiency of the proof before the verdict.

I think, also, that the court erred in requiring no bond of the executrix. The entire estate consists of money, amounting to twenty thousand dollars. All of this goes into the hands of the executrix without any security whatever to the contestant, who, as widow, is entitled to one half of it, and under an antenuptial contract seems to have a just claim to the whole of it. The statute commits to the probate judge the power in his discretion to require a bond, notwithstanding a direction of the testator to the contrary. It assumes, of course, that his power is to be exercised, when necessary, for the protection of those who are entitled to protection. If the testator undertakes to dispose of nothing which is not entirely his own, no one would have a right to demand a bond of his executor where he has chosen to dispense with it. But where it appears that his estate is largely indebted, I think it would be abuse of discretion to disregard the demand of his creditors for adequate security, if the character of the estate was such as to admit of embezzlement or waste. In this case the testator has given to the uncontrolled custody of an executrix pecuniarily irresponsible twenty thousand dollars in money, half of which certainly, and all of which possibly, belongs to his widow, — money entirely beyond his testamentary power, and which he has no right to expose to loss. I can conceive of no case calling more loudly for the exercise of the discretion of the court to require a bond of the executrix.

Henshaw, J., and Lorigan, J., concurred in the dissenting opinion.

Rehearing denied.

The following opinion was rendered by Shaw, J., on the 2d of November, 1903, on the application for a rehearing: —

¹ 79 Am. St. Rep. 167.

¹ 79 Am. St. Rep. 167.