# Petitioners Reply Brief — Joslyn v. Joslyn > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1150%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1968 - **Citation:** 390 U.S. 951 ## Text 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) : eh nad ~~ ae 2 (ee abirecal. " a Bot prs aerate cba ap Bc le ta ei Sal 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 2 = y . © * , bs &, Se ANS AL itl GOR TN Made ac kDa CP aN JNM bab hada BOAO SS abled abt aah OM. Te ye ee et Dee Eee ee a - 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. Oat: 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1150%3A6. Public record. Not legal advice.