Petitioners Reply Brief — Joslyn v. Joslyn

MARCELLUS N. JOSLYN,

ye Petitioner,

re, vs. .

SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR

THE COUNTY OF LOS ANGELES, AND THE COURT OF

IFORNIA, DIVISIONS TWO, THREE AND FIVE,

Respondents.

ALD MERRITT JOSLYN, JOY LOUISE MacNULTY, oi

LON DAVID. JOSLYN, THEODORE NEWELL J

DWIGHT JOSLYN, PENNY IRENE JOSLYN, MARCELLUS

LeFEVRE JOSLYN, MARINA ELAINE JOSLYN, LOIS E.

MENDENHALL, MRS. MARY R. SHOFF CAREY, ROBERT

F. DOLAN, BALDO M. KRISTOVICH, ‘Public Administrator,

ILSE AUD POLERI, MARCIA HARRIET JOSLYN SILL,

MARY ALI GURLEY, and ROBERT D. MacDONALD, in-

' dividually and as Executor of the Last Will of MARCELLUS L.

. JOSLYN, Deceased,

Real Parties in Interest.

~ pee.

APPEAL, SECOND APPELLATE DISTRICT, STATE OF CAL-:

MERRITT L. JOSLYN, MARY C. PARKER CURRIVAN, RON- |

CELIA ALICE PARKER, M. WESLEY PARKER, III,. MAR.

CELLUS JOSLYN PARKER, ALICE JOSLYN, WILLIAM

:

Se —— = —

TABLE OF CASES AND AUTHORITIES CITED

Cases

| Page

Bradner v., Vasquez, 43 Cal. 2d 147, 151 ..........4, 9

Cole v. Arkansas, 333 US 196, 92' L. ed..644 11

' DeJonge v. Oregon, 299 US 353, 81 L. ed. 278 ....... 11.

Estate of Fraysher, 47-Cal. 2d 131, 135 ...... .. 10

Estate of Rhode, 158 Cal. App. 24.19, 323 P.2d 490. 9

Ferrara v. La Sala, 186 Cal. App. 2d. 263, 271, 42

Cal. L. Rev. 865, 13 Hast. L. Journal 2, 7 Am.

Jur. 2d 106 | a.

Feuel y. Feuel, 23 Cal. 2d 431, 438 ... | 10

Gold v. Velkov, 133 Cal. App. 2d 622 4

Great A. & P. Tea Co. -v. Supermarket Equipment

~ Corp., 340 US. 147, 153, 154 95 L. ed. 162, 167 ..... 11

Hallet v. Slaughter, 22 Cal. 2d 552, 557 cnien ae

Hovey v. Elliott, 167 US 490 14

Illinois Central R. Co. v. Norfolk & Western R. Co.,

-. 385 US 57, 17 L. ed. 2d 162 11°

In re Murchison, 349 US 133 13

Tn re Oliver, 333 US 257, 92 L. ed. 682 icone 13.

In re Rothrock, 14 Cal. (2) 34, 39 . 8, §

Trwin v. Dowd, 366 US 717, 6 L.ed. 2d 651 +... 13

Isenberg v. Sherman, 214 Cal. 722 | 5

- Lisenba v. California,‘314 US 219, 86 L. ed. 66... 6

Magee v. State Bar, 58 Cal. 2d 423, 435 2 amnnninn4y 9

Pointer v. Texas, 380 US 400, 406 | 13

r,

ii . Iudex

Page

Priester v. Citizens Nat. Bank, 131 Cal. App: 2d 314, '

280 P. 2d 835 .. 4,9

Rader v. Thresher, 57 Cal. 2d 244. : 4

Rowland v. Kreyenhagen, 24 Cal. 52 5

Sinclair v. U.S., 279 US 649, 73 L. ed. 938 .2 econ. 13

Societe Internationale pour Participations Indus-

trielles v. Rogers,.357 US 197 14

Thompson v. City of Louisville, 362 US 199, 4 L. ed.

2d 654 .. 13

Toomey v. Ohio, 272 US 510 | 13.

Trumpler v. Trumpler, 123 Cal. 248 5

Turner-v. Louisiana, 379 US 466, 472, 473 2 -cneu-n 13

US. v. E. I. DuPont de Nemours & Co., 353 US

596, 598, 1 L .ed. 1057 11

U.S. v. Mississippi Valley Generating Co., 364 U. S.

520, 5 L. ed. 2d 268 ........ ; | 11

Authorities

| Page

Code of Civil Procedure, Section 2034 Ae ae

Constitution of the United States, Fifth and Four-

teenth Amendments 5

Supreme Court. of the GAnited States

October Term, 1967

No. 990 ;

In the Matter of the Estate of °

MARCELLUS LINDSEY JOSLYN, also known as MARCELLUS

L. vlan and as M. L. JOSLYN,

Deceased.

7

.

MARCELLUS 1 N. JOSLYN,

, Petitioner,

us.

MERRITT L. JOSLYN, MARY C. PARKER CURRIVAN, RON-

ALD MERRITT JOSLYN, JOY LOUISE MacNULTY, JOY-

LON DAVID JOSLON, THEODORE NEWELL JOSLYN,

CELIA ALICE PARKER, M. WESLEY PARKER, III, MAR-

CELLUS JOSLYN PARKER, ALICE JOSLYN, WILLIAM

DWIGHT JOSLYN, PENNY {RENE JOSLYN, MARCELLUS

LeFEVRE JOSLYN, MARINA ELAINE JOSLYN, LOIS E.

MENDENHALL, MRS. MARY R. SHOFF CAREY, ROBERT

F. DOLAN and ROBERT D. MacDONALD, individually and as

Executor of the Last Will of MARCELLUS L. "JOSLYN, Deceased.

Respondents.

- BALDO M. KRISTOVICH, Public Administrator, [LSE AUDREY

POLERI, MARCIA HARRIET JOSLYN SILL, MARY ALICE

GURLEY, ;

Respondents.

MARCELLUS N. JOSLYN,

——.

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR

THE COUNTY OF LOS ANGELES, AND THE COURT OF

APPEAL, SECOND APPELLATE DISTRICT, STATE OF CAL-

IFORNIA, DIVISIONS TWO, THREE AND FIVE,

, Respondents.

(Continued on page two) :

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ve) Vepettasos .

latices heres 36 Booties tom's

MERRITT L. JOSLYN, MARY C. PARKER CURRIVAN, RON-

ALD MERRITT JOSLYN, JOY LOUISE MacNULTY, JOY-

LON DAVID JOSLYN, THEODORE NEWELL JOSLYN, °

CELIA ALICE PARKER, M. WESLEY PARKER, III, MAR-

_CELLUS JOSLYN PARKER, ALICE JOSLYN, - WILLIAM

DWIGHT JOSLYN, PENNY IRENE JOSLYN, MARCELLUS

LeFEVRE JOSLYN, "MARINA ELAINE JOSLYN, LOIS E.

MENDENHALL, MRS.. MARY R. SHOFF CAREY, ROBERT —

F. DOLAN, BALDO M. KRISTOVICH, Public Administrator,

ILSE AUDREY POLERI, MARCIA HARRIET JOSLYN SILL,

MARY ALICE GURLEY, and ROBERT D. MacDONALD, in-

dividually and as Executor of the ten Will of MARCELLUS L.

JOSLYN, Deceased,

Real Parties in Interest.

PETITIONER'S REPLY TO RESPONDENT

To the Honorable Earl Warren, Chief Justice, and to

the Honorable Associate Justices of the Supreme

Court of the United States:

Counsel for respondent has, in a duplicated re-

sponse to the petition for certiorari directed to the

Court of Appeal, Second Appellate District, State of

California in No. 990, and in No. 991 directed to the

Supreme Court of California, misconceived ‘the pro-

cedure in these cases and the remedy authorized by law.

He has misstated the facts and law.

In our petition for certiorari in case No. 990, ‘we

. asked this Court to grant certiorari from a denial by |

‘the Court of Appeal, Second Appellate District, State

of California, of our petition to recall the remittitur

neal ae A

feat mn A ‘

upon the grounds that court granted judgment of dis-

-missal improvidently upon a false suggestion and under

a mistake as to the facts of the case and acted arbitrar-

ily and capriciously i in denying an appeal from the order

of the Superior Court without trial or hearing, denying

petitioner herein his statutory right of a will contest.

Thus its judgment of dismissal was in fact no judgment.

See In re Rothrock, 14 Cal. (2) 34, 39.

The post probate will contest involved petitioner’s

father’s estate, approximating $15,000,000, together

with a power of appointment in his father’s purported

will affecting his deceased mouther’s estate of $2,500,-

_ 000. The effect of the purported dismissal was to wipe

out petitioner’s interest in the will. The will under

_ which the son was excluded from all monetary bene-

fits and therefore was an unnatural will was drawn by

a lawyer who, after ingratiating himself with decendent

became. executor of the estate after decedent’s death

and trustee of testamentary trusts by the will he drew

and under its terms was financially.. benefitted. The

purported will was executed when the decedent was 89

years old and in feeble health. |

Examination of the document itself (which is photo-

stated in the record submitted to this Court) apparent-

ly shows irregularity on its face in connection with the

date on which the purported will was executed, to wit:

June 29, 1962 (page 41 of Petition to Recall the Remit- |

titur). If this irregularity is established it will —_ y

the will.

i

! =

—_4—

Under the situation herein, where<the will was

drawn by the lawyer-confident, the California law pre-

sumes that there has been undue influence by the

lawyer ‘in his own behalf, thus it invalidates the will,

but holds the will, if. not executed on the date and

under the requirements of due execution under Cali-

fornia law to be void and nugatory.

Priester v. Citizens Nat. Bank, 131 Cal. App.

| 2d 314, 280 P. 2d 835

Gold v. Velkov, 138 Cal. App. 2d 622

Bradner v. Vasquez, 43 Cal. 2d 147, 151

Ferrara v. La Sala, 186 Cal. App. 2d 263, 271,

42 Cal. I. Rev. 865, 13° Hast. L. Journal 2,7

Am. Jur. 2d 106 ,

Rader v. Thrasher, 57 Cal. 2d 244.

Such a will is also pr esumed to be lacking in con-

sideration.

Rader v. Thrasher, 57 Cal. 2d 244 — }

Magee v. State Bar, 58 Cal. 2d 423, 435.

After the California court prematurely dismissed

the appeal, affirming the dismissal of the will contest,

without a contested trial before a jury, the objection

was raised in proceedings duly had in the California

Courts that the dismissal of the will contest was with-

out due process of law guaranteed by the Fourteenth

Amendment to the Constitution of the United States

ey

(Petition to Recall the Remittitur, page 2). The court

summarily denied our motion which duly and properly

and timely raised the federal questions under the Fifth

and Fourteenth Amendments to the Constitution of the

United States (pages 2, 8, 9,11, 16, 19, 20, 21, 22, 23,

30, 31, 40, 53 and 56) and on our petition for hearing in

the Supreme Court of California we again timely chal-

lenged the arbitrary dismissal in the Court of Appeal,

affirming the dismissal of the statutory will contest as

in violation of due process of law guaranteed by the.

_ Fourteenth Amendment to the Constitution of the .

United States. Petition for Writ in Supreme Court of

California (R. 4, 5, 13, 15, 18, 19) Exhibit A, pp. 8-10.

The supreme Court of California arbitrarily denied

u hearing of our timely petition to recall the remittitur

on the ground that our rights under the federal Consti-

tution had been denied and that it was violative. of the

Fourteenth Amendment to the Constitution of the

United States. That court denied a hearing September

7, 1967. A’petition to recall the remittitur authorized

by California procedure is a direct attack on the judg-

ments below, resulting from denial of federal Consti-

tutional rights. . .

In re Rothrock, 14 Cal. 2d 34, 39

- Rowland v. Kreyenhagen, 24 Cal. 52 —

Trumpler v. Trumpler, 123 Cal. 248

. IsenB€rg v. Sherman, 214 Cal. 722. .

ae

:

:

4

- the jurisdiction of the United States Supreme Court

ee ae Tans Ter Sree

Chae

apt cma aeiambmstien aes aeeeaemceampemes ee sasitiicmntiihatcLidninial pecissiseth

e

-In Insenba v. California, 314 US 219, 86 L. ed. 66

(2 eases), the Court had before it two cases in which

the constitutional questions of due process of law had

first been raised in the Supreme Court of California

on rehearing in-one case (a direct attack on the judg- .-

ment) and on habeas corpus (a collateral attack). The

Court granted certiorari in both cases and the case was

heard twice by this court. Mr. Justice Roberts pointed

out that the Supreme Court of California had affirmed

the original judgment and a rehearing granted, but no

question arising under the Constitution of the United

States had been raised or considered. ‘‘In a second peti-

tion for rehearing the petitioner, for the first time, as-

serted that his conviction violated the Fourteenth

- Amendment. November 3, 1939 the Court ruled the

petition for rehearing herein is denied. This Court held

that on the record that showing that on the second pe-

tition for rehearing in the Supreme Court of California

the’ court entertained the petition and ‘explicitly over--

ruled each of the contentions made therein, established

to review the judgment. The Court also allowed and

considered the appeal on the collateral attack by habeas

corpus. (311 U.S. 222, 86 L. ed. 173)

Likewise, we here specifically: raised the federal —

constitutional question and the denial by the court be-

low showed,that it considered the case on the federal]

grounds presented and overruled and. denied the same.

ails

We specifically raised the question as to the right

to dismiss a will contest or an amended will contest pro-

vided by the California statutes, the basis of dismissal .

being solely alleged failure to grant discovery pro-

vided by Section 2034 of the Code of Civil Procedure

and we challenged the statute, Section 2034 C.C.P.—in-

herently and_as construed and applied in this case, as

violative of the due process clause of the Fourteenth

Amendment to the, Constitution of the United States.

The issues were plain and simple. Where a state

statute authorizes a contest of a will to determine the

property rights flowing from a decedent. can’ a: bene-

ficiary (the eldest son of the decedent) be deprived of

that property arbitrarily and capriciously without trial

for alleged non-compliance with a so-called rule of-dis-

covery ? Can his pleadings be arbitrarily stricken? Can

he be deprived of a jury trial guaranteed by the con-

‘stitution of his state? Does such a procedure take

the petitioner’s property without due process of law —

under the 14th Amendment to the U.S. Constitution

and give it to somebody else without trial or hearing

on the merits of the validity of the will?

We respectfully contend that it does and that judg-—

ment below construing Section 2034 of the Code of

Civil Procedure of the State of California as authoriz-

ing and permitting the summary dismissal of the will

- ¢ontest. and an amended will contest, without trial or

hearing, violates due precess of law guaranteed by the

Fourteenth Amendment to the Constitution of the

United States.

Seseilati statements of the factual background

are incorrect. There is nothing in the will or record to

show that Marcellus I. Joslyn had made any provisions

through any other trusts or procedure to provide for

his $15,000,000 estate which he left at the time of his

death. Nothing in the will declares any such a factual

situation, nor is there anything in the record before

this Court that we know of that support such a state-

ment. It is true that Alice N. Joslyn, mother, of peti-

tioner, made provisions for her son in her will and

named him to be the executor of her estate and one of

the testamentary trustees if others did not qualify, but

some of these provisions were wiped out by the provi-

sions in Marcellus L. Joslyn’s will naming Robert D.

MacDonald as successor trustee to Marcellus L. Joslyn

upon Marcellus 1. Joslyn’s death.

How much petitioner receives or what. he gets out

ot Alice Joslyn’s estate is not before the Court in this

matter and is improper ly referred to in the statement.

* Furthermor e, counsel has quoted in Appendix 1 a

declaration of Ernest Zack in support of a motion for - ,

order dismissing will contest. The deposition referred

to in that exhibit was never completed or corrected or

signed although respondents took five days in taking

it, but it does not answer the triable issue here of wheth-

er there’ was undue influence and lack of consideration

nals

~ on the part of the attorney drawing the will that is now

7 before the Court, and furthermore, does not answer the

issue of whether the witnesses actually observed the

date of. the 29th of June written in on the will, appar-

ently altered and the “9” written over some other

figure that appears underneath it, and thus invalidated

the entire will, or whether there was another alteration.

In a will contest, all the petitioner’s counsel. would

need to do would be to introduce the purported will and

prove that MacDonald, the confidante, business partner

and legal advisor, had written it with financial bene-

fits to himself. Respondent admits this fact. California

law would then presume undue influence and lack of

consideration, a prima facie case would be made out

and petitioner could even rest at this point if he wished .

to do so. |

Estate of Rohde, 158 Cal. App. 2d 19, 323. P 2d

490 © :

Magee v. State Bar’, 58 Cal. 2d 423

The court in the M agee case said ‘Even though an

attorney may be acting only to carry out the wishes of —

his client in drawing a will containing a gift to himself |

. he should send the client to another lawyer when the

: circumstances would support an inference of wrong-

— doing. (58 Cal. 2d 433)

Bradner v. Vasquez, 43 Cal. 2d 147, 151

Priester v. Citizens Nat. Bank, 131 Cal. App.

2d 314. .

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A second matter set up in respondents” opposition -

‘is the purported findings of fact, conclusions of law

and order dismissing amended will contest after pro-

hate. .

Counsel would have this court believe that ‘findings -

were based upon a trial and hearing. This is incorrect.

The record shows that there was no trial in a true sense

- and no evidence upon which the alleged findings of fact

were or could be based. Contrary to assertions of coun- —

~ gel. neither declarations nor affidavits are admissible Be

evidence in Califor nia probate proceedings except to —

_establish an ancontested will, or date of death.

_ In a contested. trial petitioner would be entitled - a

‘jury of which he'was deprived here.

In ‘the absence of statutory permission, an affidavit

- or declaration is not competent evidence ; though made, — |

under oath, it is hearsay because there has been no op-

portunity to cross-examine the affiant or declarant.

Estate of Fraysher, 47 Cal. 2d 131, 135

Feuel v. Feuel, 23 Cal. 2d 431, 438.

Affidavits are allowed in evidence in California in

probate proceedings only in uncontested matters. (Pro-

hate Code Sec. 329, evidence of subscribing witness;

Probate Code, Sec. 1170, establishment of fact of

death.)

The findings of fact, contrary tothe footnote: re-

garding findings.of fact by state courts, are independ- —

_

‘ently: exagnjned by this Court hen. a constitutional

question of due process is raised to determine if there

is any evidence to support the findings of fact: or con-

clusions of law. | :

This Court will make its.own inikcieiadeed: ouenaiey |

ation of the evidence where there is no evidente to sus-

tain the judgment for such judgment i is “void.

Cole v. Arkansas, 333 US 196, 92 L. ed. “644 |

DeJ onge v. Oregon, 299 US ™ 81. -* ed., 278.

This Court is net precluded from. i an inde-

- pendeut determination as to-legal conclusions and in-

' ferences from findings and if there is no evidence to

support findings, there’ can be no legal conclusions -

inferences.

e Ud. v. Mississippi Valley Generating Co., 364

U.S. 520, 5 L. ed. 2dk268

U:S. vB. 1DuPont de Nemours & Co., 353 US

596, 598, 1 L. ed. 2d 1057 }

Great A. & P. Tea Co. v. Supermarket Equip-

ment Gorp., 340 US 147, 153, 154, 95 L. ed. .

162, 167. 4s

: ‘The test of judiciat review is whether there is. sub-

. stantial evidence on the record as a whole. If the court

finds there is no substantial evidence, it will reverse the

judgment. — ‘

Tllinois Cpatied R. Co. v. Norfolk % Western —

R. Co., 385 US 57, 17 L. ed. 2d 162.

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- Reviewed on the record as a whole, the petitioner’s

right to. a trial on the merits‘of his will contest should

be granted: There is no substantial evidence, under

due process of law, with witnesses testifying and being

cross-examined on the basis of which the court could

make any findings whatsoever on the amended will

» contest. There is nothing to support the findings and °

judgment and conclusions of law.

_ Thus summarizing the reasons for -gteuting the

writ, the constitutional issues were timely raised in the

courts of California, in the Court of Appeal and in the

_ Supreme Court, and that court denied the claim of vio- —

_ lation of rights of due process of law under the Consti-

tution of the United States and the challenge ‘to the

constitutionality of Section 2034 of the Code of. Civil

. Procedure, inherently and as construed and applied in

this case, as violative of the Fourteenth Amendment to

the Constitution of the United States.

The petition for certiorari was timely filed in this .

Court within the time allowed by law and the extension —

sranted by Justice Douglas.

The petitioner.has been denied his day in court (a

law which hears before it condemns) on a will contest

involving a $15,000,000 estate of his: father from which

he and his brothers and sisters were unnaturally ex- -

cluded from any monetary benefits and given a few

pieces of bric-a-brac and other non-essential furniture.

~The lawyer who drew the will for this 89-year old ill

eee <

father personally benefitted and will benefit under it

and the will was therefore presumptively the product

of undue influence and lack of consideration. Examin-

ation of the document exhibits an infirmity as to the

daté inser ted into it which may make fests document void

on trial. :

~The decision of ‘ibis state court on the recall of the

remittitur was based on federal grounds, adequately

_ raised therein, which federal grounds weré considered

and denied.’ The constitutionality under the’ federal

Constitution was fully and adequately presented and

.© acted upon by the Court of Appeal and the Supreme —

_ Court of California. The procedure -and proceedings

was special, partial and arbitrary and a denial of due

process of law guaranteed by the Fourteenth Amend-

ment to the Constitution of the United States.

A trial without evidence presented from the wit-

ness stand and subject to cross-examination is in fact_

_no trial and is a denial of due process of law. The find-

ings ar e, ther ef ore, a sham and a nullity.

Inre Oliver, 333 US 257, 92 L: ed. 682

In re Murchison, 349 US 133 . |

Turner v. Lousiana, 379 US 466, 472, 473

Irwin v. Dowd, 366 US 717, 6 L. ed. 2d 651

Sinclair v. U.S., 279 US 649, 73 L.ed. 938 ~

Thompson v. City of —— 362 US 199, 4

L. ed. 2d 654 : é

Pointer v. Texas, 380 US 400, 406”

Toomey v. Ohio, 272_US 510.

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ANteauiite ie opeainwlh Sai aac S A isd GOAN ahh Meee ed

‘alien

Where iv has been uo fair adversar Vv trial, id

judgment must be vacated.

Hallett U. Slau yhter, 22 Cal. 2d. 552, 557.

This Court has recently, in different opinions, again

expressed its view that ‘there should be a trial on, the

merits. Mr: Justice Black, in-various opinions, has ex-

pressed alarm over the summary procedure which is

being practited, denying litigants their day in court.

We have-brought this out in our opening brief and cited

the leading authorities of Hovey v. Elliott, 167 US 490, —

and Societe Internatiale pour Participations Industri- |

elles v. Rogers, 357 US 197, and Mr. Justice Black’s :

views expressed in connection with the Federal Rules

of Criminal and Civil Procedure recently promulgated.

Petitioner’s case and cases cited in our petition may -

easily rest upon the unnatural will itself and the pre-.

sumption of undue influénce and lack of consideration

of the attorney who drew the document making him-

_ self executor and trustee and thus principal financial :

beneficiary under the will of Marcellus L. Joslyn and

also successor trustee under the Alice Joslyn estate.

The burden, therefore, of going forward is: upon him:

‘on the face of the record, not upon petitioner.

Furthermore, petitioner seeks a right to establish

the validity or-invalidity of the writing of the will and

all surrounding sircumstances. It does not behoove him .

to try his case outside of trial and thus to have two

_ trials of the issue. He seeks but a single trial under the

statutes of California which authorize a will contest.

before a jury to 4 relative and eldest son, who is ex-—

cluded from financiai benefits of his father’s large

estate and will by an interloper, who has placed himself

in a position of trust and confidence in the affairs of an

elderly and ill man.

Contrary to respondents’ bitin, petitioner has -

-not been heard on the merits of the will contest, undue

influences upon his aged father before the will was

drafted. irrégularity in the date of execution, lack of

- competent witnesses regarding the will and its execu-

‘ tion. If respondents really wish to give him an oppor- &,

tunity to be heard on the merits, as he is entitled to

by California law, by a jury of his peers, they will 3

stipulate to the granting of certiarari and the reversing oa

of the judgment below, so that he may have a fair trial |

on the merits of his contest before a fair jury and fair

judge.

We pray for certiorari.

Respectfully submitted, 7

"MORRIS LAVIN K, Esquire

215 West 7th Street, Suite 620

Los Angeles, California 90014

Tel. MAdison 7-3241

Attorney for Petitioner,

_ Marcellus N. Joslyn.