Thursday, April 17, 2008
Lawyer Defeats $500,000 Claim Against Lankershim Estate
By ROGER M. GRACE
One of attorney J. Wiseman MacDonald’s chores in connection with administering the $7 million estate of San Fernando Valley land developer J. B. Lankershim was defending it against a $500,000 claim by the decedent’s one-time companion, Irene Herbert.
Lankershim, 77, supposedly dictated to Herbert, 38, the terms of a note in her favor, which he then signed. It read:
“Los Angeles, Cal., October 10, 1927. Payable to Irene Herbert...$500,000 one month after my death from my estate, or my trust fund for her loving kindness and protection to me since January 4, 1924. Value received and charge to account of J. B. Lankershim.”
Lankershim’s wife was alive at the time, but had lived in Paris since 1920. The investor visited her each year for three or four months, returning to Los Angeles where he lived alone at the Biltmore—until Herbert induced him to move into the Engstrum Apartments in September, 1927, on the same floor on which she was residing. The wife died in 1928, and later that year, Herbert discontinued her care of Lankershim.
MacDonald prepared a will for his client which was executed March 29, 1929. There was no provision in it for Herbert.
Lankershim died on Oct. 16, 1931. Herbert made a claim against the estate, which MacDonald spurned.
Herbert brought suit in Los Angeles Superior Court, and jury selection began Oct. 22, 1933.
A friend of Herbert testified as to having been present when Lankershim dictated the language and signed the note. Another friend recited on the stand:
“Col. Lankershim said to me: ‘Remember, I told you I was going to reward Irene? Well, I have given her a note for half a million dollars payable a month after my death. I have told you this but I don’t want you to tell anybody else.”
A handwriting expert testified for the defense that the final zero in “$500,000” was of a different size than the preceding ciphers and out of alignment with them, supporting the defendants’ theory that the note originally read “$500.00,” and the period was changed to a comma. A USC professor of chemistry declared that the note was written at a different time from the signature being affixed and that the ink Lankershim used in signing his name was from a different bottle.
On Nov. 22, 1933, a jury came in with a 10 p.m. verdict in favor of Herbert. Los Angeles Superior Court Judge Douglas L. Edmonds on Nov. 27 heard vociferous argumentation by MacDonald as to why he should issue a judgment N.O.V., but the judge declined to do, finding the verdict to have been amply supported by the evidence.
The Court of Appeal affirmed on Dec. 13, 1935, declaring:
“In the case before us counsel have filed briefs containing 927 pages of printed matter, the larger part of which is devoted to a review of the evidence....Unquestionably, there is a conflict in the evidence, with substantial evidence to sustain the findings of the jury, and such being the case, the findings may not be disturbed on appeal.”
However, on Aug. 23, 1937, the California Supreme Court reversed. (One justice did not participate. Edmonds had been the trial judge.)
Justice Emmett Seawell’s opinion characterizes MacDonald as “a trusted and close personal friend of the deceased [who]...had been his legal and business advisor for many years prior to his death.” Note is made, in summarizing the defendants’ evidence:
“Mr. Macdonald, [Lankershim’s] attorney, advisor, and the manager of the Lankershim Estate Corporation, when called upon to prepare decedent’s last will and testament, had not the faintest hint that an outstanding claim in the sum of $500,000 evidenced in the manner shown by the evidence was to be uncovered for the first time in the settlement of the estate. It is scarcely conceivable that a successful business man of wide and varied experience, in the circumstances of the case presented, would leave his executor and business manager in total ignorance as to the bona fides of a claim of such proportions without realizing that it would beyond doubt, from the nature of the transaction, meet with rejection by the person whom he had appointed by his testamentary act to pass upon it.”
Finding a lack of substantial evidence, Seawell’s opinion observes:
“The story of a transaction involving the transfer by said instrument to the enrichment of the plaintiff in the sum of $500,000, in the circumstances related by plaintiff and her witnesses, not only strains the credulity of those expected to accept it, but it would seem to bring into serious question the normal mental condition of a former successful business man who engaged in such a transaction. The contention that the decedent had no independent advice in the matter, especially during the few weeks immediately prior to the transaction, when he was under the surveillance of Mrs. Herbert and her companions at the Engstrum, is rendered probable by plaintiff’s [own] witnesses....”
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