Full opinion text
SEAWELL, J. J. B. Lankershim, commonly known as Colonel Lankershim, a resident of the city and county of Los Angeles, state of California, died testate on October 16, 1931, at the city of Brooklyn, state of New York. He left a large and valuable estate. J. Wiseman Macdonald and Bank of America National Trust and Savings Association were appointed special administrators, with general powers as to the management of Ms estate. By paragraph IV, count one, of the complaint, denominated “Complaint—Money on Contract”, plaintiff alleges: “That during the lifetime of said decedent and on the 10th day of October, 1927, said deceased J. B. Lankershim at and in the city of Los Angeles ... in consideration of and on account of services rendered by plaintiff to and for J. B. Lankershim at his special instance and request,' at divers times and occasions between January 4, 1924, and January 1, 1928, as a companion to him and in reading to Mm, administering to his wants; caring for his welfare; preparing food, meals and delicacies for him; attending to and caring for his wearing apparel and linen; aiding and assisting him in dressing and undressing and other activities of life; protecting him from artful and designing persons; consoling and sympathizing with him in times of worry, anxiety, displeasure and disappointment; nursing and administering to him in times of sickness and ill health; preparing and administering medicines and other treatment as directed by physicians or desired by him and otherwise caring for and administering to his comfort, contentment, welfare, happiness and pleasure, made executed and delivered a certain instrument in writing,” which is marked “Exhibit 1”, of which the accompanying photoprint is a facsimile. (See reproduction on page 418.) Said instrument was presented to said special administrators for payment in the form of a creditor’s claim on August 1,1932, and it was rejected on August 25, 1932. It was made a part of count one by reference. For a separate and second cause of action plaintiff alleges that the decedent for a valuable consideration made, executed and delivered to plaintiff said written instrument and prays for judgment in the sum of $500,000, together with interest thereon as provided by law, and that the same be paid from the estate of J. B Lankershim in due course of administration, and for appropriate relief in the premises. In both counts of the complaint the kind of services and the period of time in which they were performed are definitely alleged. Doria C. Lankershim and John I. Lankershim, children of the decedent, and J. Wiseman Macdonald, the executors named by the decedent in his will, were, in due course, substituted as parties defendant in the place and stead of said special administrators. J. Wiseman Macdonald was a trusted and close personal friend of the deceased and had been his legal and business advisor for many years prior to his death. On October 10, 1927, the day the disputed instrument bears date, the decedent was seventy-seven years of age and the members of his family then living were his wife, Caroline A. Lankershim, and the son and daughter, answering defendants herein. The plaintiff was at said time the wife of Bdres Herbert and was approximately thirty-eight years of age. Decedent executed his will on March 29, 1929, some seventeen months subsequent to the date which said questioned instrument bears. He died October 16, 1931, and his will was admitted to probate on December 14, 1932. He made no provision for nor mention of plaintiff in said will. Decedent’s wife predeceased him by three years and a few months. The son, daughter and J. Wiseman Macdonald, executors, deny at length and in detail the genuineness of said instrument bearing date October 10, 1927, and allege by way of separate and affirmative defense matters which are absolutely opposed to and directly tend to refute the bona fides of plaintiff’s claim. It is admitted by plaintiff that she wrote all the written matter constituting the questioned instrument except the name “J. B. Lankershim”. It is also admitted that the ink lines drawn through certain printed words and figures and such interlineations and changes as appear upon the face of said instrument were made by her. Appellants insist that the instrument itself presents physical features which unmistakably bear witness that a number of changes and alterations were made after the name of “J. B. Lankershim” was appended to it, and that the several physical changes which stand unexplained invalidate the instrument. (Sec. 1982, Code Civ. Proc.) It is argued that the face of the instrument is self-accusatory and the doubts and uncertainties which it creates, and the incongruous situation which has been produced by the alleged transaction, are not consonant with the gravity or enormity of the transaction, nor agreeable with any sensible business method which a person of Colonel Lankershim’s business experience and training would adopt for the accomplishment of a much less important transaction. In other words, it is contended by the executors that under no rule of rational conduct can it be concluded that a man who possessed the business sagacity which respondent attributes to Colonel Lankershim would have adopted a plan or scheme of transfer involving a large fortune which held within its basic construction elements which would obviously and inevitably furnish potential grounds of attack, such as are here made upon it. The executors stress the fact that the signature “J. B.. Lankershim” is divided into three parts, none of which are in alignment, and contend that it was written by a hand tremulous with age and inadequately directed by seriously impaired vision; that at a time when waning faculties had rendered him unable to resist the wiles and importunities of designing persons, a state of superannuation in which respondent herself had placed him, she obtained his signature by deceit and misrepresentations as to the true nature of the instrument, if, indeed, anything at all was written on the paper at the time his name was subscribed to it. That he relied upon others to read to him is firmly established by witnesses on both sides of the case. Plaintiff herself in her creditor’s claim incorporates “reading to him” as constituting one of the assignments of employment upon which she predicates her claim for compensation. Appellants’ answers are pleaded in both categorical and conditional forms. They direct attention to the fact that all of the printed portions of the instrument were in the form of a check or draft, and the portions that were marked out of the instrument by plaintiff were marked out without the knowledge, consent, approval or ratification of decedent, and none of the printed portions left remaining were read to him, and contend that said printed words were left therein without the decedent’s knowledge, and without instructions from him to leave said printed matter in said instrument, and it is, therefore, no part of said instrument. The genuineness of the signature is denied on information and belief, but it is alternately alleged that if the signature is genuine, all of the written matter contained in said instrument was written after the signature of the decedent had been affixed to a check or draft and signed by him in blank as a matter of business convenience, made accessible to respondent by reason of the existing close personal and confidential relations which respondent fully describes in her verified claim filed herein. The other alternative suggested is that his signature was procured by misrepresentations as to the character of the instrument made to him when his signature was obtained. The claim that the body of the instrument was either written in toto after signature, or was originally in form a draft or check in the sum of $500 and was thereafter altered and added to, is based chiefly on the close crowding of the words on the line on which the signature is written, and particularly on the fact that the word “me”, next preceding the signature, is forced upward and out of line to prevent it from overlapping the signature. Other physical characteristics are pointed out as being wholly contradictory of and inconsistent with the claim that the matter which respondent wrote on the blank check truly recorded his dictation or expressed his wish. By separate answer it is alleged that if said decedent executed and delivered said instrument, no consideration or benefit of any kind whatsoever passed to said decedent for its execution and delivery; that if any consideration passed from plaintiff to decedent on account of the making and delivery of said instrument, such consideration was grossly inadequate and it did not amount to more than a trifle in a transaction involving a half million dollars; that the procurement of that vast sum for such grossly inadequate consideration constituted a fraud practiced upon him. It is affirmatively alleged by the answering executors that plaintiff became acquainted with the decedent about the month of January, 1924; that he was then past the age of seventy-three years and plaintiff Avas of the age of about thirty-five years; that she was then a married woman, the Avife of Edres Herbert, and was then presumably residing with her husband in the city of Long Beach, county of Los Angeles, and said plaintiff herein and said Edres Herbert were at all times husband and wife; that on January 4, 1924, and for many years prior thereto, decedent resided alone at the Hotel Biltmore, in the city of Los Angeles; that during the period covered by the transaction herein set forth, plaintiff and decedent were on very friendly terms. Said executors further allege that during all of the period from January 4, 1924, to October 10, 1927, decedent was in a weakened and debilitated condition and was being massaged and was receiving physical treatment from a professional masseur who was in daily attendance upon him at the Biltmore Hotel; that on October 10, 1927, decedent was past seventy-seven years of age, and he then was and for several years immediately prior thereto had been suffering from debilitating illnesses which had progressively increased with advancing years, thereby impairing his mental force and vigor to the degree that he-was easily influenced by those who had gained his confidence; that decedent’s eyesight had failed to the extent that on October 10, 1927, if able to read at all, it was only with the aid of powerful lenses, and that at all times herein plaintiff Avas familiar with decedent’s physical and mental infirmities. A condition of atrophied impairment of the optic nerve of decedent’s eyes will later receive attention. It is further alleged that plaintiff, having formed the intent and purpose of obtaining from decedent a large sum of money, and being a woman thirty-eight years of age, and possessing an attractive personality and ingratiating manners, wove herself into his kindly favor; that she visited him socially on frequent occasions at his rooms at the Hotel Biltmore, and at decedent’s expense she accompanied him to theaters and took many meals with him; that she performed petty acts of service, many of which were unnecessary, and all of them were done for the purpose of winning his trust and confidence and to assist her in gaining a dominating influence over him to the end that she might carry out her purpose of obtaining from him a large sum of money; that by the indulgence of blandishments and by doing the foregoing acts she succeeded in making him believe that she was fond of him, and was anxious to help him, and that he needed her assistance, all of which was untrue, and she thereby gained his trust and confidence; that plaintiff was a woman possessing considerable mental force, and decedent, having entered a state of progressive mental and physical disintegration, became dependent upon others in domestic and business matters, and plaintiff, taking advantage of his increasing weakness, exercised her power over him to the degree that she was able to dominate him to a marked degree and substitute her will for his will. In furtherance of her said plan, on or about the middle of August, 1927, she left her Long Beach home and rented living quarters in the Engstrum Apartments in the city of Los Angeles, situated near the Hotel Biltmore, where decedent resided. It is further alleged that by her persuasion he gave up his apartments at the Biltmore Hotel, where he had made his home for a number of years, and on September 1, 1927, moved to an apartment at the Engstrum, selected by plaintiff, on the same floor and directly across the hall from the apartment occupied by plaintiff; that plaintiff visited decedent’s apartment several times each day; that on the day the said instrument is alleged to have been executed she falsely and designedly, with the purpose of unduly influencing him, represented to decedent that she was his only real friend, and that she had done more for him than his children had done, and he ought to make her comfortable because of all her acts of kindness, all of which representations were false, but believed by decedent to be true; that while he was at said Engstrum Apartments plaintiff influenced him to deny himself to his friends, other than such visitors as she elected that he might see. The answer alleges that before signing, or at the time of signing said instrument, if in fact and truth he actually signed it, in its present form or otherwise, the decedent consulted no attorney or friend, and did not advise with anyone as to its terms or effect, and that it was not the voluntary act of decedent, nor did it express his wish or will, but said instrument is the product of false representations and of undue influence which she brought to bear upon his will. Defendants further allege that if deeedent did in fact place his signature on said instrument, he was induced so to do by the representations of plaintiff that said instrument was a check or promise to pay to plaintiff $500 and no more, and that the fifth cipher was thereafter added by respondent in an attempt to convert the figures $500 into $500,000. In physical appearance, the fifth cipher indisputably differs quite pronouncedly from the other ciphers in size, pen pressure, formation and color intensity. Evidently a blotter was applied immediately after it was made. The spacing between it and the cipher next to it is much greater than the spacing between any of the other ciphers. It is raised above the ruled line, and corresponds in alignment with the two ciphers which constitute the figures ‘ ‘ 500 ’ ’, after which there is a period and two other ciphers, which, defendants claim, was the true and original amount before it was changed by plaintiff from $500.00 to $500,000. The lower loops of the last two ciphers, denoting cents, drop below the ruled line, thereby differentiating them in alignment from the ciphers admittedly standing for dollars, while the alleged added cipher and the two ciphers expressing the amount in dollars, two spaces removed to the left, are in alignment; that is, all three are equidistant above the line. In other words, the two ciphers underscored, representing “00” cents (provided the amount is to be read $500.00), drop below the ruled line, whereas the two ciphers immediately to the left of said ciphers are in alignment with the figure “5” as in $500. The physical fact cannot be disputed that if a blinder is placed over the disputed cipher, which appears some distance to the right of the fourth cipher, the amount is $500.00. The point after the second cipher is undoubtedly a period. The contentions of the executors made on appeal, briefly stated, as to the instrument itself are: (1) that the signature of the deceased was obtained by trick or device, or his signature was affixed to the instrument in blank and the plaintiff thereafter surreptitiously obtained the same and wrote all that appears thereon; (2) that the instrument as originally written provided for the payment of $500, and some time thereafter plaintiff fraudulently changed it to its present form; (3) that the large sum is accounted for on the theory that it was not possible, without creating telltale evidence of the erasure of the period, to raise it to any other or intermediate sum below $500,000; (4) that the words “thousand dollars”, and the insertion “one month” after the fifth cipher, and the changing of the year 1927 to 1924, and the whole of the closing lines beginning with “kindness”, constitute proof that the changes were made long after the signature of the decedent was written on the instrument. It is a further allegation of the executors that whatever attention or courtesies were shown the colonel by her were done for the purpose of cajoling him by delusive flattery into the belief that his .welfare was a matter of deep concern to her; and that she made no suggestion to him that she intended to make a charge against him or his estate for any of the services to which she now lays claim. Section 337, subdivisions 1 and 2, and section 339, subdivision 1 of the Code of Civil Procedure, are pleaded as bars to plaintiff’s action. The foregoing sets forth in substance the issues as framed by the pleadings. The jury returned a verdict in favor of plaintiff for the sum of $500,000, the full amount demanded, with interest at the rate of 7 per cent per annum from November 16, 1931. Judgment was ordered entered in plaintiff’s favor in accordance with the jury’s verdict, including the costs of trial. The amount of the judgment, including interest, now approximates $700,000. The defendants have appealed to this court from an order denying their motion for judgment notwithstanding the verdict of the jury, and from the judgment in favor of plaintiff and against the defendants. The appeal is presented on an engrossed bill of exceptions. Many assignments of error are set forth by appellants as to certain instructions given on behalf of respondent, and the refusal to give a number of instructions requested by appellants on matters of law necessary for the guidance of the jury, also undue limitation of cross-examination of plaintiff’s chief witnesses, and as to numerous errors made in admitting evidence over the appellants’ objections, and excluding material evidence offered by appellants, greatly to their prejudice. Other rulings are complained of, but only such rulings as are of major importance will receive consideration. The transaction in its inception, development and final consummation, as told by the witnesses for the respondent, presents an extraordinary proceeding. It is earnestly insisted by appellants that no reasonable deduction can be made from the testimony of respondent’s witnesses other than that respondent planned to acquire, with the cooperation of her associates, a large part of the decedent’s estate, the plan to be executed in secrecy and known only to a coterie of her intimate friends and associates who were unquestionably active in assisting her cause. The age, physical incapacity and failing mental powers of the decedent, which are made apparent by the transaction itself (conceding that he performed the alleged acts in the manner claimed by respondent), and other circumstances shown at the trial, including the confidential relations which are clearly shown to have existed between said parties by the casé made out by the respondent herself, and the inadequacy of any consideration that the decedent may have possibly received from respondent, make it the duty of a reviewing court to scrutinize the transaction searchingly. This rule has been announced in various forms by this and other courts. A concise statement of the rule where the relations between the parties were intimate and highly confidential, as here, and where the donor had no independent advice, and where the conveyance was without valuable consideration, or, it may be parenthetically added, in cases where the consideration is grossly inadequate, is announced as follows in Mead v. Mead, 41 Cal. App. 280, 285 [182 Pac. 761, 763]: “Under such circumstances, the decisions hold uniformly that the transaction resulting in benefit to the trustee should be viewed with ‘the most scrutinizing jealousy’ and that the presumption of fraud attaches, and must be overcome by evidence that the deed is what it purports to be.” (Citing a long list of authorities.) Paraphrasing the language used in Cox v. Schnerr, 172 Cal. 371, 378 [156 Pac. 509, 512], it may be said that ‘ ‘ plaintiff herself furnished proof of the utmost trust and confidence reposed in her by Colonel Lankershim”. It is there further said: “The burden of proof usually rests upon the person asserting fraud, but when one bases a claim upon a contract obtained from a person to whom he stands in a relation of trust and confidence, it becomes his task to prove that he exhibited that uberrima fides which removes all doubt respecting the fairness of the contract. ... It applies in every case ‘where there has been a confidence reposed which invests the person trusted with an advantage in treating with the person so confiding’. (2 Jones on Evidence, edition of 1913, sec. 190.) “In every transaction of this kind, one who holds such confidential relation will be presumed to have taken undue advantage of the trusting friend, unless it shall appear that such person had independent advice and acted not only of his f own volition but with full comprehension of the results of his action. (Ross v. Conway, 92 Cal. 632, 635 [28 Pac. 785]; Darlington’s Estate, 147 Pa. St. 624-631 [30 Am. St. Rep. 776, 23 Atl. 1046]; Firebaugh v. Burbank, 121 Cal. 186-191 [53 Pac. 560]; Piercy v. Piercy, 18 Cal. App. 751-756 [124 Pac. 561]; Odell v. Moss, 130 Cal. 352, 357 [62 Pac. 555].)” The rules of law as announced in the above cited eases and in many others of this state furnish the criteria or tests which must be applied to the issues of fiduciary and confidential relations which have been indisputably shown to have existed between respondent and decedent, Colonel Lankershim. Whether undue influence will be presumed or inferred from the relationship as described by the evidence is a matter which necessarily involved the proposition as to whether the instructions given by the court sufficiently covered the issue of undue influence, or were as full, direct and explicit on that issue as the appellants were entitled to have given in the circumstances of the case. We will later consider that question in our discussion of the sufficiency of the instructions. We will next give consideration to the testimony of the four experts who were called to testify in the ease. Two were called as experts in handwriting and photographic art in its highest form of development, as a means of distinguishing the genuine from the counterfeit, and two were experts in the restoration of deleted and changed texts, one of whom made chemical analyses and other tests as to the kind and color of inks used in the production of the questioned document. All of them apparently brought to their aid all that science and chemical knowledge of the subject afforded. Albert S. Osborn, lecturer at the United States Bureau of Investigation at Washington, D. C., and a nationally recognized authority on handwriting and disputed documents, and James Clark Sellers, a lecturer at the University of Southern California, and an expert examiner and photographer of questioned documents, also a widely known authority in his special lines which embrace the subjects of inks, dyes, ink absorptions, and the determination of whether writings which cross creases made by the folding of papers were done after the instruments had been folded (as was contended by all the experts in the instant case) or were done before the creases were made by folding, and also offered as an expert as to alterations made in documents since originally written, were the two witnesses called by the appellants. Dr. Lodewyk Hendrikson, head of the photechnical department at the Huntington Library and Art Gallery at San Marino, whose special work is the reproduction and the examination of documents, and the restoration of texts which have been deleted, changed or altered, and Professor Brinton, head of the department of analytical chemistry at the University of Southern California, and who formerly occupied chairs as teacher and lecturer at the University of Paris, the University of London and the University of Minnesota, were specially selected by the court (Code Civ. Proc., sec. 1871), and gave testimony as to the integrity of the questioned document. All four were definitely of the opinion that the signature, J. B. Lankershim, was not written at the same time, with the same kind of ink, or under the same writing conditions or circumstances as other parts of the instrument were written. The experts in handwriting were of the opinion that the last cipher in “$500,000”, and other specified parts of the instrument, were not written at the same time that the body of the document was written, and that the ink coloring was different and stated particulars. The highlights of the opinion evidence given by the experts called by the appellants and selected by the court (none were called by respondent) may be briefly summarized as follows: The signature, J. B. Lankershim, was written before the body of the instrument was written; the shade of color of the ink is different in certain designated words from the shade of others; discs, or small particles of cakes caused by the drying of ink upon the pen are discernible in the lines of the first letter, initial “J”, in the signature, which do not appear elsewhere in the writing of respondent; the shade of color in the signature is different from the other writing; the instrument had been folded before the body of the document was written, as shown by the spreading of ink as it crosses the creases made by folding; in some instances the ink, where the writing crosses the fold, penetrates to the back of the instrument; a splash of ink is discernible on the right-side of the letter “H” where it crosses the fold line as the pen was caught in broken fibre made by the fold; the date line at the bottom, “Jan. 4, 1924”, was originally written 1927, and two figure fours were afterwards superimposed upon the numeral “7” in an effort to convert it into “4”; the word “me”, next in position to the letter “ J”, was given an upward slant to avoid writing into the letter “J”, which constitutes the first letter of the signature; “one month”, the word “me”, and the fifth cipher of “$500,000” were blotted, and no blotter was used on any writing near by or elsewhere; if all parts of the instrument had been written at the same time, other words in close proximity to the blotted words and cipher would also show ink absorptions; the letters forming “Five hundred” are either generally vertical in position or slant to the left of a vertical line, whereas the words “thousand dollars” immediately following said words and which are claimed by the experts on penmanship to have been written at a subsequent time, slant to the right; the words comprising the sentence “kindness and protection to me”, which are written below the printed words “value received and charge to account of”, are closely crowded together. Other questions as to word and letter spacing, pen pressure, slanting of letters, arrested and cramped arm motion, differences as to the lightness and heaviness of ink fluids, and ink blurs, which may be readily observed by an inspection of the instrument, are discussed at great length. It is appellants’ contention, supported by expert testimony, that if decedent knowingly signed his name to the draft or cheek, it was written as a straight check for $500.00, and all that appears upon its face tending to transform it into a $500,000 obligation was written without the consent or knowledge of the decedent. The photographic copy of said instrument is herein reproduced. It shows generally the physical things which form the basis of the experts’ opinions, except as to a faint crease made by folding the paper a second time at a point midway between the crease running through the center .from top to bottom and the left edge of the document. Appellants stress the point that the testimony of the experts is uncontradicted in the main, and in this particular their contention in some respects is borne out by physical facts appearing upon the face of the instrument which are brought directly to the attention of this court for scrutiny. Such evidence cannot be arbitrarily ignored or nullified by the jury’s verdict based upon the testimony of a single witness as to the execution of said instrument, if the testimony of said witness contains within itself such evidentiary weaknesses and abnormalities as to render it too unreasonable and inherently improbable to support the judgment, particularly in the light of the facts of this case, which, under all authority, must be jealously scrutinized. Plaintiff’s case rests in no small degree upon alleged oral admissions made by decedent against interest. The only evidence which can be regarded as corroborative of Miss McKee’s testimony as to the execution of the disputed document is the instrument itself, admittedly in the handwriting of the plaintiff to which the decedent’s name is attached. Appellants insist that her testimony as to the production of the instrument is impeached by the inherent improbabilities which confront it and by the instrument itself in the circumstances of the case. On the subject of oral admissions, unless corroborated by satisfactory evidence, this court, in the Estate of Emerson, 175 Cal. 724, 728, 729 [167 Pac. 149], rates it as the weakest of testimony that can be produced. Lord Romilly, master of the rolls, in Crouch v. Hooper, 16 Beav. 182, made the following observations as to this kind of testimony .• “ ‘It is always necessary to remember that in these cases, from the nature of the evidence given, it is not subject to any worldly sanction, it being obviously impossible that any witness should be convicted of perjury for speaking of what he remembers to have been said in a conversation with a deceased person. ’ Therefore, proceeds the learned judge, he has never experienced any difficulty in rejecting and disregarding such evidence.” The decision points out that the position or interest of such witnesses may be so patent as to make it “ ‘the duty of the court to examine their testimony with a jealous care and to scan it with a watchful scrutiny. They are masters of the situation and swear without fear of contradiction. The safe administration of justice demands that in such a ease there should be either satisfactory corroborative evidence, or that the evidence of the living party should be so full and convincing as to persuade the court of its entire truth. ’ And, finally, the text-writers show that the courts are all in accord in thus weighing such evidence, and here suffice it to cite 2 Moore on Facts, secs. 877, 1150 and 1166; 1 Taylor on Evidence, sec. 648; Wigmore on Evidence, secs. 578, 2065.” (Italics ours.) (Estate of Emerson, supra.) In support of the above text, section 2061, subdivision 4 of the Code of Civil Procedure; Mattingly v. Pennie, 105 Cal. 514 [39 Pac. 200, 45 Am. St. Rep. 87]; Austin v. Wilcoxson, 149 Cal. 24 [84 Pac. 417], are also cited. It is also urged that plaintiff’s case is founded on coincidence, fortuitous circumstance and unusual incidents or events which have neither a natural or logical beginning nor sequence, and are at variance with the rational conduct of a. person who had in contemplation a transaction of the kind, importance and magnitude of the one under examination. It is pointed out that it is the duty of courts, in the examination of cases of the nature of the one before us, not only to inquire into the confidential relations existing between the parties involved, but also to carefully scrutinize the purposes and intent which likely motivated the party who would become excessively enriched by the accomplishment of a grossly uneven bargain. It is insisted with much force that in view of the relations which existed between the principals to the controversy and the nature and magnitude of the transaction, in the light of the evidence disclosed by the record, due respect to and regard of the laws which direct human conduct, particularly as applied to persons highly trained in business affairs, render the case made by respondent too weak and insubstantial to support a judgment grossly in excess of the value of any services respondent had the ability to perform or of which the decedent was in need. The evidence upon which respondent relies to sustain her judgment, and which appellants most vigorously assail, was given by Miss Stella McKee, a close friend and companion of respondent for a number of years. Like Mrs. Herbert, she resided at Long Beach, where their relations had been very intimate for several years. She accompanied Mrs. Herbert to the lawyer’s office during pre-trial days and at the trial of the case, and, no doubt, counseled with her. Mrs. Herbert had lived in her apartments at Long Beach, and she was acquainted with Mrs. Herbert’s husband. The witness of equal importance to Miss McKee, and who was most active in promoting a relation of companionship and personal friendship between Mrs. Irene Herbert and Colonel Lankershim, was Mrs. Adele Blood Hope. After leaving Long Beach Mrs. Herbert occupied, at various times, apartments rented by Mrs. Hope. Mrs. Hope originally introduced and brought together Mrs. Herbert and Colonel Lankershim. Her activity in Mrs. Herbert’s interest appears from her own admissions. She after-wards met her on several occasions and under various circumstances at the Biltmore Hotel in the apartment of Colonel Lankershim. Miss McKee, at the time of trial, testified that she was then employed as a cashier in the public utilities department at Long Beach, had formerly been employed by a Long Beach bank as teller or cashier, but was without employment after July, 1927; that she was a visitor on five or six occasions at the apartments of the colonel upon invitation of her friend, Mrs. Herbert. She partook of meals and attended a picture show or theater frequently as the guest of the colonel, and partook of his hospitality very freely. Because of. his failing eyesight, theater seats were never further from the stage than the second or third row. He said he “had to sit close to the stage ’ ’. Frequently he would leave the theater before the picture or program was more than half completed. The numerous dinners which the witness and other mutual acquaintances and friends of Mrs. Herbert enjoyed at the Biltmore Hotel were served in the colonel’s apartments. He paid all bills. He seemed generous in hiring taxicabs and placing his automobile at the disposal of his female guests, both for use within the city and for beach and long distance trips. Miss McKee, who testified that she was in the colonel’s room at the time the disputed instrument is claimed to have been written, said, in explaining her presence, that a few days before October 7, 1927, she received a letter at Long Beach from Mrs. Herbert, who reminded her that her (Miss McKee’s) birthday fell on October 7th, and invited her to attend a birthday party which she wished to give in celebration of the occasion at her apartments at the Engstrum Apartments, where she was stopping. The witness answered, accepting the invitation. In her deposition, taken some five months before she testified in the case, she stated that she did not attend on the day set, as her duties at the bank would not admit of her attendance. Her attention being called to the fact that she had not been employed at the bank since the month of July preceding, she admitted error, but was unable to recall the circumstances which prevented her attendance on the seventh. She did arrive from Long Beach on the evening of the ninth of October. She took dinner in Mrs. Herbert’s room, Colonel Lankershim being present, and remained overnight with Mrs. Herbert. Upon arising in the morning Mrs. Herbert prepared breakfast for the three. Between 9:30 and 10 o’clock she and Mrs. Herbert entered Colonel Lankershim’s apartments, which were across the hall from Mrs. Herbert’s room. Mrs. Herbert carried a tray containing muffins, some fruit, coffee, tea, sugar and cream. Evidently their entry into the colonel’s apartment was an unexpected visit. The colonel was lying on his bed and was attired in his dressing robe and had on slippers. He took his breakfast reclining on the bed while Miss McKee and Mrs. Herbert ate from a small table which they had set. After breakfast the colonel complained that the masseur employed to attend him had not arrived. He was disappointed and annoyed that the masseur was not there to perform a duty he was hired to perform. He said that Irene had never failed him. Mrs. Herbert then suggested that she do something for him and she began to rub his arms, the back of his head and neck, and to put cold compresses over his eyes. In her deposition Miss McKee had averred that the colonel complained of feeling tired and said his eyes were bothering him. She contradicted this statement at the trial and testified that he said nothing about his eyes bothering him or feeling tired, but when they entered he said he was feeling fine. According to the witness he was lavishly profuse in his praise of Mrs. Herbert. He complimented her for the perfect manner in which she had cooked the prunes, and the muffins and the coffee were just to his liking. He said, “Irene, you know how to cook meals to suit me.” He further said she was always thinking of the things he liked and preparing them as he liked them; that she did more for him than anybody in the world, even his own children; all the little things she did meant very much to him; that he was never disappointed in Irene; she had an understanding mind and knew what he liked and when he wanted a thing done she did it. He spoke of her kindness and thoughtfulness of him, and how necessary she was to him. When she had finished rubbing his arm and head, he said: “Now, I am going to make good the promise I made you. I am going to pay you well for your services.” He arose from his bed and went to a dresser, took out a piece of paper, and said: “I want you to write what I am going to dictate.” The witness then recalled that he dictated “something like this”. She then repeated verbatim, even as to the order and arrangement of each word and sentence, the verbage appearing in the body of the written instrument which she had heard dictated but once and had not seen or heard discussed by anyone during a period of nearly six years. She and Mrs. Herbert had lived within that period in the same apartments for some time and at one time were interested in a common business enterprise. They had resided within a half block of each other at Long Beach for quite a period and had been close friends and companions for a number of years, but at no time did she or Mrs. Herbert even hint at or mention the existence of the instrument, notwithstanding the fact that Mrs. Herbert, according to her testimony, usually carried it in her passport book or purse on her person, and at no time was it out of her immediate control prior to the colonel’s death. The witness testified that it was an unusual instrument in form, such as she had never seen before in her experience as a bank employee, and she was unable to classify it. She testified that the colonel requested of her and Mrs. Herbert that they should not mention the transaction to anyone. This commitment of secrecy was not observed by the colonel himself, if the testimony of Miss Ruth Belle Allen, daughter of Mrs. Isabel Clark and an intimate friend of Mrs. Herbert, is to be accepted, as she testified that she met the colonel in Mrs. Herbert’s apartment on the afternoon of October 10, 1927, and he was smiling and said to the witness, Mrs. or Miss Ruth Belle Allen, “I told you I was going to pay Mrs. Herbert. I have given her a note for half a million dollars, payable a month after my death. ’ ’ She had known the colonel not longer than seven weeks. He further cautioned: “I don’t want you to mention this to anyone, Miss Allen.” He called her Ruth. She said she would not mention the note. He said, “I wouldn’t tell you, but I can depend on you not to tell this where people will discuss it.” He did not say why he did not want her to tell. Mrs. Herbert did not say anything, but “just smiled”. The witness claimed that she did tell her mother and discussed the matter with Mrs. Herbert. Returning to the story of the production of said instrument as related by Miss McKee, appellants seriously contend with good reasons that the reproduction, word perfect, of an instrument which is peculiar in its phraseology, and which the witness heard read but once and which she read herself but once, and which had not been seen or discussed by her or by anyone else in her hearing, after the lapse of a period of more than five years is such a wide departure from the usual and common experience as to the operations of the mental faculties as to partake of the miraculous in mnemonic feats and has a strong tendency to bring distrust upon the testimony of the person claiming the power to perform such a feat, tested by the rule of reasonable probabilities, taking due note of all the other facts and circumstances which bear upon the testimony under scrutiny. The witness, further describing the transaction, said that the colonel was lying on the bed while he was dictating, and respondent was sitting in a rocking chair, holding the paper on her lap as she wrote the. dictation. The witness from her position said she could not see what Mrs. Herbert was writing. When the dictation was finished Mrs. Herbert read it over and said: “I forgot to put in the ‘one month’.” He said, “Insert it after the $500,000.” She read it to him, and handed the note to him. He looked at it and got up out of bed and went over to the dresser and signed the note. He was in bed when she handed it to him after she had written it. The witness said he appeared to have read it. When he reached the dresser he pushed the cover back and began to use his arm as if writing. He had a pen in his hand which lie got from Irene Herbert. The witness said she could not say it was a different pen or the same one used by Mrs. Herbert. She did not notice what was done with the pen. He handed the note to Irene. She took it, looked at it and said: ‘ ‘ Colonel Lankershim, I thank you.” The colonel went back to bed. Mrs. Herbert passed the note to her, she took it in her hand, read it, and returned it to Mrs. Herbert. She said she recognized the instrument dated October 10,1927, as the same paper handed to her by Mrs. Herbert five years previously. She further testified that the colonel told Mrs. Herbert “to take it [the paper] to the bank and keep it there until after his death, and then to take it up to his attorney, Mr. Macdonald, and he would see that she received the money.” The witness did not know what Mrs. Herbert did with the note after the colonel gave the above instructions. It is certain that she did not follow his instructions in a very important particular. After Mrs. Herbert handed the note to the witness she left the apartment alone. She first met the colonel in 1924, when she visited his apartment at the Biltmore Hotel upon the invitation of Mrs. Herbert. The witness recited the months from memory on which she had met the colonel since 1924. Most all of the five or six meetings were had upon invitation of Mrs. Herbert at the Biltmore Hotel. She took meals with Mrs. Herbert in the colonel’s apartments and attended places of amusement as his guest. Upon the occasions when she was at his rooms Mrs. Herbert took to his rooms custard, vegetable soup or lamb stew. On one occasion she prepared his bed for him; once she mended his hose and sewed buttons on his clothing and rubbed spots off his clothes after eating dinner; once she heard her call a valet and instruct him to take his clothes to the cleaner. She had also seen her rub his hands, the back of his neck and head, and heard him say, “she had a very soothing touch to her fingers”. The witness stated in her deposition that the colonel said he was going to pay respondent well for her services. She quoted the colonel as saying, “I am going to fulfill my promise and pay you for services rendered. ” Nothing was said by either as to what would constitute a reasonable charge. During the early stages of Miss McKee’s testimony she described with meticulous detail the dictation as given by the colonel. She made conflicting statements both as to the year and month that the services were to be reckoned from, but finally said she remembered that the true date named as the commencement of service was January, 1924. The body of the instrument as written was reproduced word perfect, even to the order of its language. She said that in writing the instrument Mrs. Herbert omitted from the dictation the words “one month” next after $500,000, and her memory was that she discovered the omission while in the midst of writing the instrument. At other times she stated that Mrs. Herbert discovered the omission after she had finished writing the instrument. The time of discovery was left by the witness in a state of confusion. She gave conflicting testimony as to whether Mrs. Herbert selected the place where the omission should be inserted without instructions from the colonel, or whether the place of insertion was made as dictated by him. In a part of her testimony she said that the colonel with much exactness instructed Mrs. Herbert to insert the omitted words immediately after “$500,000” as expressed in figures, and in other parts she said that he gave her no instructions as to the place where the insertion should be made, and that Mrs. Herbert inserted the omitted words without any instructions from anyone, as “she knew where to put it”. Miss McKee also testified as to paper, pen and ink being in the room, but did hot see a blotter in the hands of Mrs. Herbert, on the table or elsewhere in the room. A caret indicates the place where the omitted words were inserted, which clearly shows that they were supplied after the instrument had been written, or at least after the line in which they were inserted was completed. The witness also testified that Mrs. Herbert was seated in a rocking chair and wrote from her lap. A table and stationary chair were accessible and were used by the colonel when he is said to have written his name. In relating the circumstances in which the said instrument was written, she testified that the colonel arose from his bed, went to the dresser, took out a piece of paper and carried it, together with pen and ink, to a table and instructed Mrs. Herbert to write what he was about to dictate. Why Mrs. Herbert should have selected a rocking chair and written from her lap a document which she must have known was of tremendous importance to her, was not explained. It is not claimed the colonel sat in a rocking chair when he signed his name at the dresser. The note was read to the colonel as he was lying upon the bed, and handed to him. He took it in his hand and appeared to read it. He arose from the bed and took the paper and pen to the dresser and appeared to be writing. He returned, handed her the note, and went back to his bed. Mrs. Herbert said nothing to the witness that she could recall with respect to the instrument after it was signed and delivered to her. She left the apartment a few minutes later. During all of their close relations and friendship the matter was never again referred to until Miss McKee’s deposition was taken almost six years later. Whether or not the instrument had been folded before Mrs. Herbert had written the alleged dictation became a matter of inquiry. The witness testified that she held the instrument in her hand and read it. She was then asked: “Q. Had it been folded at that time? A. It had not. Q. Perfectly flat? A. It was.” The witness then returned it to Mrs. Herbert and said she didn’t know what respondent did with it. Under examination by appellants, she said that she saw “some printed matter” on it but she did not “pay any attention to the printed matter”. The following question was then put to her: “Q. You did not read the printed matter on it then, did you? A. ‘For value received,’ I remember seeing that. Q. The Colonel did not dictate ‘for value received’, did he? A. It was printed on it. The Colonel did not dictate ‘for value received’. I don’t recall that Mrs. Herbert read ‘for value received’ when she read the contents of the note. Q. Don’t you know that she did not? A. I don’t recall her reading it. ’ ’ The instrument shows a crease through the center. The experts point out that the spreading of ink is discernible in the trough made by folding in several places. The writing in crossing the trough loosened the fibre or sizing of the paper and left it much in the condition of blotting paper. It is pointed out that the capital letter'“H” near the top of the paper, being the first letter of respondent’s surname, and the letter “m” in “me”, appearing near the signature “ J. B. Lankershim”, prove that Mrs. Herbert’s writing was done across a distinct crease made by folding the instrument. It is also claimed that the ink penetrated through the paper in places and is discernible in the photograph taken of the back of the instrument. Several printed words not mentioned by Miss McKee and which were not stricken out by Mrs. Herbert appear upon the face of the instrument. “Los Angeles, Cal.,” the first words of the instrument, and the word “dollars”, well down in the instrument, and the last five words of the “value received” clause, to wit, “and charge to account of”, are printed words not referred to by the witness. The words “value received”, which she had a distinct recollection of observing, were of great importance to the respondent’s case. . The witness testified that she had not been aided by anything she had heard or seen since October 10, 1927, and her testimony was based solely on her memory as of that date. The witness had no such accuracy of memory as to any other matter printed on said note. She was unable to recall anything that Mrs. Herbert wrote to her when she invited her to the birthday dinner, or anything she said in her reply or in explanation as to why she was three days delayed. The other unusual trait of memory exhibited was her ability to name the several months in which she had heard the colonel speak in complimentary terms of Mrs. Herbert. In a number of other matters her memory was faulty. The witness next in importance to Miss McKee was Mrs. Adele Blood Hope, also known as Miss Blood, who identified herself as “formerly known as Adele Blood, the actress”, and as having played many engagements in Los Angeles and particularly the character of “Everywoman” in the play known as “ Every woman ”. She was forty-seven years of age, a native and resident of California, but had been residing in New York city for some three years past and came specially to Los Angeles to testify in the case. She was engaged in the advertising business in New York. She said that she first met Colonel Lankershim in 1908 at the Lankershim Hotel, in Los Angeles. She was intimately friendly with him and the acquaintanceship continued until 1928 or 1929, which was the last time she saw him. She had known Mrs. Herbert eighteen or nineteen years. She first met her at her home at Great .Neck, Long Island. She introduced the colonel to Mrs. Herbert either before Christmas day in 1923 or soon after New Year’s day, 1924, at the Biltmore Hotel, Los Angeles. She left soon afterwards but returned about Christmas time in 1924. During a time when Mrs. Herbert and the colonel were visiting at her home in Hollywood, Miss Blood said that the colonel asked her if she knew that he had made Mrs. Herbert his companion. She replied that she had not known this, and the colonel said the very fine cooking that she had done in her apartment had made him realize that he had been living in hotels and not getting the right kind of food. He had been interested in getting his health in better condition. The witness said she then asked Mrs. Herbert how it seemed to be drawing a salary. She said she was not drawing a salary. Miss Blood then said: “Well, if I were a companion to anyone I would certainly want to draw a salary for my work.” The colonel said “likely that I would, meaning me, but that he would pay Mrs. Herbert" in his own time and in his own way. I told him I thought it was rather an unbusinesslike procedure.” There is no evidence that Mrs. Herbert ivas a cook or ever was so engaged or that she was ever engaged as a nurse. Miss Blood, her close intimate friend, never knew her to be so engaged. The evidence points in an opposite direction. The colonel at all times stayed at hotels well supplied with bellboys, housemaids, valets, chefs and such other attaches as first-class hotels afford, and with the best there was of culinary art for the comfort and convenience of their guests. The fact that the colonel preferred first-class hostelries to the private home cooking of which it is said he was so fond is proved by the fact that, except for the few weeks he was at the Engstrum, where all relations with Mrs. Herbert ended, he made his home at the Biltmore Hotel, where every modern convenience of living and service was at his beck and call. There is no evidence to justify an assumption that Mrs. Herbert at any time rendered regularly continuous or necessary service in the capacity of a cook, nurse or attendant, with the understanding or in the sense that persons are employed to perform such services. It affirmatively appears by the testimony of plaintiff’s chief witness, Miss McKee, that he stated that he had a regularly employed masseur at the time the instrument in question was executed, and from statements of other of her witnesses it is clear that said masseur or attendant had been in his continuous service for a number of years, and it was his duty and habit to visit him every morning and administer to his physical needs and personal welfare. There can be no doubt but that he was surrounded by a coterie of attendants employed by the leading hotel where he lived in comfort and luxury. The witness stated that in 1924 she rented a flat for occupancy by her mother at West Eighth and Garland Streets. Mrs. Herbert stayed at the apartments much of the time when Miss Blood was away, and also when she was there. Mrs. Herbert and Miss Blood’s mother lived in the same flat both at Eighth Street, Los Angeles, and at Long Beach. Mrs. Herbert occupied the witness’ room many times when the witness was not in Los Angeles. The colonel was then living at the Biltmore Hotel. Miss Blood was at the Biltmore Hotel from October, 1925, to the spring of 1926. She testified that Mrs. Herbert was always at the Biltmore apartments when she called on the colonel during her stay from October, 1925, to the spring of 1926. She saw Mrs. Herbert brush his hair and bring him a wet towel so he could wash his face. She would order his breakfast, and nearly always supplement it with something she brought with her. She saw her bring him his glasses and wipe them, and give him medicine, massage his neck and head. She sometimes put a light on his face for a nervous trouble he had on the side of his face. She had seen her dry clean his ties, mend his underwear and socks; help him put on his slippers and dressing gown; clean spots from the front of his clothing; order his meals; arrange for theater tickets and accompany him to the theaters and see that he was comfortable; assist him in the taxi and see that the windows were closed, which often made it uncomfortably close in going to theaters; saw her manicure his nails. She said she and the colonel often walked from the Biltmore to Mrs. Herbert’s apartments at the Bngstrum and had dinner at Mrs. Herbert’s apartments. She met him in Paris in 1926 and had lunch with him several times, and he expressed a regret that he had not taken Mrs. Herbert to Paris with him. (This was while he was on one of the regular annual trips he made to Paris to visit his wife, who was in ill health, and his daughter. He annually spent from four to seven months in Paris with them.) She testified that he expressed regret that he had not taken Mrs. Herbert with him to Europe as he was extremely lonely and had no one to go with him to the different restaurants and theaters. She noticed an unclean condition of his vest and tie and called his attention to his untidiness and he said: “If Irene was here this would not have happened. I have been so dependent on her care. Sometimes I am careless. ’ ’ She took him to her sitting room and removed the spots. She met him in New York in 1927. Mrs. Herbert came with him and she met them upon their arrival. He was then on his way to Paris to visit his wife and daughter. Mrs. Herbert-stopped at New York, where Miss Blood was then living. Miss Blood next saw the colonel in August or the first of September at the Engstrum where Mrs. Herbert was living. The witness left shortly for New York and did not see him again until her return to Los Angeles in the latter part of February or first week in March, 1928. She met him in the galeria of the Biltmore and had luncheon with him. He told her that Mrs. Herbert was no longer with him. The witness expressed surprise and the colonel asked her if she had not known it and she replied in the negative and asked him why it was. He told her that his attorneys had felt that “it was best that he have a man companion or attendant”. The witness said it was too bad, as she had been with him during all these years. “I asked him what he had done, how much he paid her, Mrs. Herbert, for all the years of service, whether he had paid her and he said he had. I asked him how much he had paid her, how much he had given her. He said he had not given her money. I said, ‘Well, that is rather amazing. What did you dot’ He said, ‘I have given her a note for services rendered’, when he could easily give her money. He said he liked to do things in his own way. He always was not in a position from the curiosity of people surrounding him to do things as he wanted to do even though he was a man of wealth.” The witness asked the amount of the note and he said it was enough to take care of her for the rest of her life and that she would have “plenty for some of her pet charities”. In reply to a further question as to when the note was due, he answered that it was due “one month” after his death. The witness then said: “I told him I thought it was a very silly thing, it would be very much better if he gave her money while he was alive instead of giving a note payable after his death. He told me that one of the real regrets of his life would be that he would not be here to see Mr. Macdonald’s face when he saw the note.” This was rather a grim quip of humor for a man who, as the witness said, was not then well and who certainly was infirm with age. The above colloquy illustrates very forcibly that she appeared to be more concerned as to the amount of money that her friend, Mrs. Herbert, was to receive from the colonel than she was in his comfort or his personal welfare. It also gives weight to the claim that someone exerted influence over him which outweighed any counter advice that his attorney might give him on the subject, and that such assurance of providing for Mrs. Herbert would tend to quiet the fears of his interroga