Parker v. Bryson

On November 20, 1917, Andrew Holloway died at his home in Pasadena at the age of forty-five years, leaving a last will and testament as follows: “I, Andrew Holloway, of the City of Pasadena, - County of Los Angeles, State of California, being of sound and disposing mind and memory do make, publish and declare this my last will and

The contestants in taking this appeal specify eight grounds of error, which we will discuss in the order of their presentation, and in reviewing the evidence under each of the eight specifications we ’will interpret it in the light of the rule that all presumptions and intendments are in favor of the action of the court below.

1. The first assignment of error is that the purported will was not signed by the deceased, and that the subscribing witnesses were not present at the time the deceased’s name was subscribed to the will. The evidence on this question is uncontradicted. Testimony was given by Annie M. Holloway, the widow, by Mineita E. Binkley, a nurse, by Mrs. Nita J. Wright, a Christian Science practitioner, and by the attorney, Samuel S. Hinds.

It was testified by the nurse that on the morning of November 4th the deceased appeared to want someone and his wife finally decided it was Mrs. Wright, who was called on the telephone, and came between 11 and 12 o’clock that morning; that Mrs. Wright told the nurse to get a piece of paper and take down what the deceased had to say; that the nurse got the paper and pencil and knelt beside the bed

Mrs. Nita J. Wright testified that “When Mr. Hinds returned he came into the room and he again spoke to Mr. Holloway; Mr. Holloway recognized him and he said, ‘Now, Andy, I am going to read this paper to you. You understand that this is your will?’ and he asked Miss Binkley and I to look over, each one of us, over each shoulder, and to read with him as he read this aloud. After he read this paper he said to Mr. Holloway, ‘Now, Andy, you understand this is your last will, and is this what yon want done?’ Mr. Holloway said, ‘Most assuredly; it is what I have always wanted,' or, ‘what I have wanted.’ . . . Mr. Hinds, after

Samuel S. Hinds testified that on November 3, 1917, he received a telephone call from Mrs. Holloway and in response thereto went to her home; that he received another call the next day at about noon and went to the house and into the room of deceased; that Mrs. Nita J. Wright and Miss Binkley and Mrs. Holloway were also present; that deceased was sitting on the side of the bed; that Miss Binkley handed him “the so-called pencil will” and said, “Mr. Holloway has just dictated these words”; that he took the paper and asked who is “Little Annie” and Miss Binkley said “Mrs. Holloway”; that he advised the nurse to erase the word “little” and write in the word “wife” and immediately afterward changed his mind and told her to rewrite the word “little”; that he wrote in the date, “November 4, 1917” at the top; and “I said, ‘Andy, this will that you have just made, you understand what it is I’ and he nodded his head, and I said, ‘ This will leaves all of your property to your wife; is that what you want to do ? ’ And he nodded his head and spoke the word ‘Tes,’ he answered in the affirmative, in either one of those ways—I don’t know which it was, and I said, ‘It will be necessary to have two witnesses on this will. Do you want Mrs. Wright and Miss Binkley to act as witnesses ?' and he answered in the affirmative. I then wrote out the attestation clause, pen and ink, and Mrs. Wright and Miss Binkley signed as witnesses in the presence of Mr. Holloway and in the presence of eaeli other”; that he took the paper and went to his office and wrote it out on the typewriter after asking an attorney whose offices adjoined his own the exact wording of the wit

This evidence is corroborated even as to minor details by the widow of deceased and the Christian Science practitioner.

The contestants argue that “at its best the so-called signature was an attempt to have the writing appear to be the signature of the deceased . . . there is no evidence that he requested anyone to sign the purported will for him.”

[1] It is clearly shown by the testimony above recited that the will was properly subscribed in the presence of the attesting witnesses and at the request of the testator. The fact that another person did the writing or guided the testator’s hand because he was physically weak comes within the provisions of section 1276 of the Civil Code, and raises no presumption against the due execution of the will. (Estate of Guilfoyle, 96 Cal. 598 [ 22 L. R. A. 370 , 31 Pac. 553 ].) In the case of Estate of Latour, 140 Cal. 414 [ 73 Pac. 1070 , 74 Pac. 441 ], the testator was so enfeebled by sickness at the time of the execution of the will that he - was unable to communicate except by signs in answer to questions, and the court held that this fact was not sufficient to shift to the proponent of the will the burden of proof as to the mental capacity of the testator. The question is not whether the testator himself, or another person at his request, signed the will at the end thereof, but whether the testator had sufficient understanding to direct the disposition of his property. This question, we assume, has particular reference to the physical capacity of the testator, and under another head we will discuss his mental capacity.

[2] Evidence was introduced bearing on all the elements of a due execution of the will and was sufficient to squarely present that issue of fact to the jury, and the contestants offering no affirmative evidence, there was no conflict; and the evidence being sufficient as matter of law, it cannot be said the court erred in directing the jury to find for the proponent on the issue we are considering.

2. The second assignment of error is that there is not sufficient evidence that the subscribing witnesses signed the purported will in the presence of the deceased. Contestants did not offer any testimony that at the time the deceased’s name was subscribed to the will the subscribing witnesses were not present. As shown under the first assignment of

3. This assignment of error is that even if it be concluded that the will admitted to probate was duly executed, nevertheless the deceased was procured to make the will by the undue influence of his wife, the nurse, the Christian Scientist, and the attorney, Samuel S. Hinds.

The contestants urge that the evidence shows that’ undue influence was brought to bear upon the testator on November 4, 1917, at the time the will was executed; that in February, 1913, the deceased made a will without suggestion from anyone, and in June, 1916, after his attitude changed toward his brother Arthur, he went to the office of his attorney, Victor L. Ward, and told him he wanted to change his will; that in both the prior wills he did not name his wife as executrix, but named his attorney, Victor L. Ward; that the will of 1916 is a “formidable document,” containing many clauses and worded in a formal and businesslike manner as contrasted with the purported will admitted to probate; that he at no time mentioned the other attorney, Samuel S. Hinds; that in 1917 he told his sister, Mrs. Ethel Parker, that he had remembered her in his will;

It is true that the deceased had previously made a will in which the contestants were mentioned, but the evidence is ample to sustain an inference that between the time that will was made and his last illness he had suffered financial reverses and was planning some change in the disposition of his estate.

William C. Baker, who knew the deceased for a number of years, testified that he met him at a club to which they both belonged; that he had a brief conversation with him during the month of August, 1917, two or three months before he died; that he spoke of his illness and that he worried about his contracts and losses and then told him he had made enough money to take care of his wife “and that is sufficient. ... It is a great comfort to me.”

Miss Floy Burdick, the stenographer and bookkeeper in the office of deceased, testified that he had suffered heavy losses and worried a great deal; that she talked to him in October or November, 1916, when he said he must change his will and have everything go to his wife; that about six weeks before his death he told her if he should die suddenly she was to take certain books to the office of Victor L. Ward, who had drawn his previous wills, and say to him: “I know that these papers are in your hands because I want Annie well provided for.”

Mrs. Rose Bryant, whose husband was associated with deceased in business, testified that deceased, who was worried about his business, asked her how her husband, before his death, had arranged his affairs. She told him that every

A. E. Austin, a general contractor, who did business with deceased, testified that deceased, in his presence, asked Mrs. Rose Bryant how Mr. Bryant had left his affairs, and remarked that he wished he could do the same.

This evidence is sufficient, as we have indicated, to support an inference that the deceased had formed an intention to make a change in the disposition of Ms estate.

With respect to the contention that the change of attorneys tended to support the claim of undue influence, Victor L. Ward, who was his general attorney, testified that he had drawn a will for him on June 2, 1916; that he did not know that Mrs. Holloway had tried to get in touch with him during deceased’s last illness; that he had a telephone at Ms office in Pasadena and one at his residence; that the only time he was away was when he went to Bakersfield and returned November 14th, after having been away a little over twenty-four hours; that he was in and about his office during office hours on business days from October 20th to November 13th, except that he may have been in Los Angeles at court.

The wife of the deceased testified that before Samuel S. Hinds came she “several times endeavored to communicate with Mr. Ward. ... I saw Mr. Ward on Monday following October 25. ... I told Mr. Ward I had been trying to get him for some time and was unable and he said, ‘I just returned from Bakersfield and I heard Mr. Holloway was ill and came out.’ I said I had tried several times to get him and he said, ‘I can’t be in a dozen places at once.’ ”

T. H. Parker, the husband of Ellen Parker, a sister of deceased, testified that after the death of deceased he went to visit Mrs. Holloway and asked her why Victor L. Ward as attorney did not draw up the will, and Mrs. Holloway said she tried to get him but could not, so she got Samuel S. Hinds.

It also appeared that Samuel S. Hinds was a friend of the deceased and belonged to the same club and church. Mrs. Holloway further testified that she “called him because I felt I would like to have some one to speak to that I could

Concerning the question of undue influence claimed to have been exercised by the Christian Science practitioner the testimony is that she had known deceased about four years and treated both him and his wife; also that she had treated him at his request during the last six months of his life; that on November 4th there had been some conversation with the nurse about the deceased wanting to see a Mr. “Rice,” but as the sequel showed he meant Mrs. “Wright,” who was called by Mrs. Holloway and asked to come and she came in half an hour, the deceased greeting her; she sat by the side of the bed and finally asked him what was troubling him; that he answered it was not his business or the work in Ventura but that he was worrying about “little Annie” and that he wanted to make a will—Mrs. Wright called the nurse, the pencil will above mentioned was written; that she advised Mrs. Holloway to call a lawyer and Samuel S. Hinds was summoned; he came shortly afterward. Mrs. Holloway testified that she never had any conversation with Mrs. Wright in reference to enlisting the services of Samuel S. Hinds to make a will and that no word was spoken to Mrs. Wright, either before she arrived or before the nurse spoke, about the deceased wanting to see someone about a will.

There is no evidence that the beneficiary, the widow of the deceased, was active in any way in the preparation of the will. Mrs. Wright was the first to ascertain that the deceased desired to make his will. She thereupon advised the widow to call an attorney and the nurse got paper and wrote the pencil will. [4] It is only when a beneficiary has been active in the preparation or participated in the execution of a will that a presumption of undue influence arises. The presumption of such influence is not raised by proof of interest and opportunity or a confidential relation alone. (Estate of Relph, 192 Cal: 451 [ 221 Pac. 361 ].)

There is no evidence to show that the nurse influenced the deceased in the making of the will. Miss Binkley arrived on October 30th and prior to that time had never seen de

There is nothing in the record to show undue influence on the part of any of the persons named by the contestants.

[5] The kind of undue influence that will invalidate a will must be such as in effect destroyed the testator’s free agency and overpowered his volition at the time of the making of the will. (Estate of Motz, 136 Cal. 558 [ 69 Pac. 294 ] ; Estate of De Laveaga, 165 Cal. 607 [ 133 Pac. 307 ]; Estate of Ingram, 1 Cof. Prob. Dec. 222.)

[6] General influence not brought to bear directly upon the testamentary act, however strong or controlling, is not undue influence such as will afford ground for the setting aside of a will of a person of sound mind. There must be evidence, either direct or circumstantial, that pressure was brought to bear directly upon the testamentary act. (Estate of McDevitt, 95 Cal. 17 [ 30 Pac. 101 ].)

In order to invalidate a will on the ground of undue influence, mere evidence that the persons alleged to have exercised such influence had the opportunity to do so and might have done so if they had been so disposed and had possessed such influence, is insufficient. “The undue influence must actually exist, it must be actually exerted and it must be so exerted as to affect the terms of the will. ’ ’ (Estate of Purcell, 164 Cal. 300 [ 128 Pac. 932 ].)

In Estate of Bryson, 191 Cal. 521 , at page 541 [ 217 Pac. 525 , 533], it was said: “ ‘ In order to establish that a will has been executed under undue influence, it is necessary to show, not only that such influence has been exercised, but also that it has produced an effect upon the mind of the testator by which the will which he executes is not the expression of his own desires.’ (Estate of Calkins, 112 Cal. 296 [ 44 Pac. 577 ].) ‘The presumption of undue influence is not raised

We do not think that the evidence we have summarized is sufficient to justify an inference of undue influence* which would invalidate the will. The fact that a new attorney was called in to prepare the will, in the absence of other circumstances, would not sustain an inference of undue influence; the presumption that the widow, who occupied a confidential relation with deceased, exercised undue influence upon him to induce a will in her favor does not arise, because she is not shown to have been active in the actual preparation of the will other than by summoning Mrs. Wright and Samuel S. Hinds; the evidence further shows that the deceased’s sister and her daughters were at his home during his last illness and had an equal opportunity to visit, consult, and advise with the testator; the two subscribing witnesses, the nurse and the Christian Science practitioner, are not beneficiaries under the will and no reason is suggested as to why they would aid the wife in obtaining a will in her favor;

The jury, therefore, was properly instructed to answer the fifth question in the negative. Even if the jury believed all the evidence of the witnesses for the contestants, they must have found for the proponent on this question, for it was insufficient as matter of law to establish undue influence.

4. This specification of error is that the deceased was not of sound and disposing mind at the time the will was executed.

It appears that Andrew Holloway was engaged in the street contracting business and for a year prior to his death he spent one-third of his time at Oxnard, where he was engaged on a road contract. During the summer of 1917 he was ill much of the time and for ten days prior to October 24th he and his wife had been at Oxnard; he was ill about half the time. He suffered from stomach trouble and hiccoughs and the doctors testified that the disease was cirrhosis of the liver caused by overindulgence in alcoholic drink. On October 24, 1917, accompanied by his wife and Miss, Ploy Burdick, his secretary, the deceased drove from Oxnard to Pasadena, where he had his home. The automobile had a leaking radiator and part of the distance he drove in the dark, as the automobile was not equipped with lights. Before getting out of the automobile upon reaching Pasadena the deceased was exhausted and fatigued and he cried. On the next day he had recovered sufficiently to go to town about 4 or 5 in the afternoon and on the following day he stayed home all day on account of illness. This condition continued for several days and finally, on October 29th, a doctor was called, who diagnosed the ease as acute indigestion. A prescription was given and the deceased “went into a drowsy stupor” after an opiate was given him. On October 30th another doctor was called and a nurse came to assist in caring for the deceased. On November 1st he signed a check for the pay-roll in his business and on the next day his wife and Miss Ploy Burdick went to Oxnard to pay the help. Various persons came in to see him and several doctors were in attendance. The first physician

Mrs. Nita J. Wright testified that on the day the will was signed the deceased was rational; that when the nurse gave Mm a drink he thanked her, and that “it was a normal attitude”; that after the will was made she called again; he indicated some flowers that Mr. Hinds had sent; he said he had not seen anything more beautiful, and remarked that Mr. Hinds had sent them; that he was always of slow speech; that he was a reticent man; that physically he was abnormal but mentally he was normal.

Mineita E. Binkley, the nurse who was called during the last illness of deceased, testified that he suffered from pain;

H. F. Messer, a druggist and brother-in-law of deceased, • testified that the deceased and his wife were very affectionate and pleasant with each other; that he called to see deceased and tried to cheer him up; that he would answer “no” by shaking his head; that he knew him and knew what he was doing; and when he did converse he was rational; that he did not talk much at any time—“He was always a quiet man and not given much to talk.”

Mrs. H. F. Messer, the wife of the above witness, corroborated his testimony about the conversations with deceased; that he sang with his wife and appeared to enjoy the phonograph music when it was played and he accompanied the music; that he did not talk very much at any time, either when he was well or sick.

Walter Simons, who was intimately connected with deceased for a great number of years, testified that when he visited and greeted him he roused up and said, “Hello, boy,” and that he appeared to be in the exhausted condition that sick people usually are; that he saw deceased on the evening Dr. Campbell and Dr. Crance held the consultation; that he was propped up in bed and that his eyes were fixed partly open; that he thought he heard the death rattle in his throat and told Mrs. Holloway that he was dying.

Mrs. Mary Lisco testified that when she occasionally saw him he was very ill and nauseated, and suffered intensely; that several days after the nurse came she visited him, and when Mrs. Holloway asked deceased if he knew Mrs. Lisco

Samuel S. Hinds testified that at the time the will was made and executed he thought the deceased was a very sick man and probably very near the end; that he did not know from what disease he was suffering and that he acted upon the assumption that the deceased was rational at all times. He stated, “I did not ask him whether he remembered what property he owned. I made no inquiry as to whether he remembered his relatives or friends, or whether he had any children, or whether he had been married before. I made no investigation at all with express purpose to ascertain whether or not his illness had progressed to that point where it affected his mind. ... I don’t think his mind at that time was in such a condition to have comprehended all the intricacies of a contract for street improvements understandingly. The will—it seemed to me was a very simple proposition and I think he was able to comprehend that. There were no complications.” He also testified that on November 13th he prepared a power of attorney in favor of his wife and explained to the deceased the necessity of it; asked him if it was his desire to sign it, and he said, “Yes”; that Miss Binkley again guided his hand in signing it; that the deceased at the time repeatedly attempted to tell him about something but was interrupted by a fit of hiccoughing and that he told him he must keep quiet.

Contestants called the following witnesses:

Mrs. Ellen Parker, a sister of deceased, testified, that on November 6th, when she came to see deceased, Mrs. Holloway told her not to try to talk to him, that he would not know her; that he drank out of a straw and made bubbles in the glass; that his eyes were partly opened; that he did not answer and took no notice of her; that the nurse said his system was poisoned and it had affected his brain; that she went again on November 14th and the nurse was feeding him with a spoon; that he took no notice of her and repeated just what she said to him; that on November 17th she came again, but he did not speak to her and that Mrs.

Ethel Parker and Christobel Parker, two nieces of the deceased, both testified that when they saw him they could not tell whether he was sleeping or resting.

Dr. E. S. Rosenberger, an intimate friend of the deceased, testified that he was ill about a year before he died and that during the last two months of his life he was quite sick; that on October 29th when he saw him, he did not recognize him; that he was in a stupor, and although he tried to, he did not have any conversation with him; that on November 1st, when William Rogers and he went to the room of deceased to get the check signed, the deceased was not of sound mind, could not take care of his business, was “practically unconscious,” and could not write, and gave no sign that he understood the purpose of the check when it was explained to him.

William Rogers, an intimate friend of the deceased for twenty years, testified that Mrs. Holloway told him the deceased was ill; that he went to see him, and upon greeting him, the deceased said he was a very sick man; that on November 1st, when the check for the pay-roll was signed, the deceased was not in such a mental condition that he could take care of himself or of his property; “that he was in a sleepy condition and his eyes were closed, and he did not appear to be—he appeared to be asleep, showed no signs of intelligence, and I should say that he was not conscious of what was going on.”

George Holloway, a senior brother, testified that he was always on friendly terms with deceased; that deceased drank alcoholic liquor to excess and was very ill the last year of his life; that on November 2d, he went to see deceased and was not allowed to see him because deceased would not recognize him; that he returned on the 6th or 7th of November and that the deceased did not recognize him; that he mumbled something and his eyes were closed; that he moved his head a little when Mrs. Holloway put her hands on his head; that he saw him again on November 19th and deceased did not at that time know anything, he was breathing hard and his eyes, partly open, were set on

Dr. H. C. Brainard, who qualified as an expert mental and nervous disease specialist, in an answer to a hypothetical question relating to the life history of deceased and the facts concerning- Ms last illness as testified to by the witnesses, declared that in his opinion the deceased was not of sound mind during the period from November 1st to the date of his death, November 20th; that “it was evidently a case of cirrhosis, a history of chronic liver disease in its terminal stage, in wMch stupor is a very common and usual accompaniment, and that stupor apparently began the first of November, or that by a few days, and continued to his death.”

Dr. William M. Lewis, another expert, gave a similar opinion as to deceased’s mental condition.

[7] When all the testimony bearing on the issue of mental capacity is considered and weighed together it cannot be held it is not sufficient as matter of law to support a finding either way, and hence the verdict of the jury that decedent at the time of the execution of the will admitted to probate had mental capacity to make it cannot be disturbed. There is no pretense that the testator was delirious, irrational, or insane or under any delusions, but merely that he was in such a state of bodily weakness as to be peculiarly susceptible to suggestion and that the nature of the disease from wMch he was suffering affected his mind to such a degree that he was incapable of an intelligent disposition of his property. It is not claimed that he was subject to mental aberrations. More particularly, the contestants contend that “The slowness of speech was due to the condition of his brain,” but all the' testimony shows that the deceased was a reticent man and habitually very quiet. It is true the expert physicians who answered hypothetical questions said the fact that deceased repeated the Lord’s Prayer and sang songs and hymns was mere mechanical repetition and the contestants contend from this that the deceased’s brain was affected by the poison in his system. Plowever, the attorney, Samuel S. Hinds, testified he thought the deceased was able to comprehend the will at the time it was executed but that he did not think he could have comprehended all the intricacies of a contract for street im

There is no claim that the testimony of the various witnesses, subscribing, lay, or expert, was improperly admitted or that it is not sufficient as matter of law to sustain the verdict on that issue. It is contended, however, that the opinion of lay witnesses as to the condition of mind of the deceased is a mere conclusion and not supported by their statements as to his condition. (Estate of Russell, 189 Cal. 759 [ 210 Pac. 249 ].) [9] The testimony of the subscribing witnesses is unequivocal. “The law presumes that a subscribing witness had his attention directed to and noted the mental capacity of the testator, therefore his opinion should be entitled to more weight than that of one who was merely passive.” (1 Alexander’s Commentaries on Wills, p. 515.) Of course, the weight of such testimony is for the jury to determine.

It was said in Estate of Casarotti, 184 Cal. 73 [ 192 Pac. 1085 ]: “It must be borne in mind that it is not every weakness and impairment of the faculties of the testator that will invalidate a will. Even where a testator is feeble in health, suffering under disease, and aged and infirm, yet if he was of sufficiently sound mind to be capable of understanding the nature and situation of his property, and of disposing thereof intelligently, without any delusions affecting his action, he had sufficient capacity to make a will. . . . [Citing authorities.] It was held that the fact of the testator being unable to speak articulately and was compelled to communicate by signs did not raise a legal presumption of incompetency to make a will. (Estate of Latour, 140 Cal. 415 [ 73 Pac. 1070 , 74 Pac. 441 ].)”

Here the issue of undue influence was eliminated. There is no evidence of influence or suggestion of any kind tending to direct the deceased’s testamentary acts. The evidence is plainly to the effect that he personally suggested

In our opinion the state of the evidence does not tend to show incompetency to make a will either because of his physical condition or mental irresponsibility.

[10] 5. From the treatment of the foregoing points it is abundantly clear that the court did not err in instructing the jury to answer the first four questions hi the affirmative and the fifth in the negative. In fact, it would have been error to refuse to direct a verdict, as there was no substantial evidence whatsoever tending to support any of the contentions made by the contestants.

The contestants contend, however, that the direction of the court precluded the jury from considering the following:

That the testimony of the handwriting expert shows that the signature of “Andrew Holloway” and the word “little” were written by the same pencil and different from the balance of the writing; that the paper upon which the will was written by the nurse was not a clean sheet of paper and shows erasures and unrelated commas and periods; that the signature of deceased on the will and the power of attorney were not made with the same ink, and shows that the letter “d” in the Christian name “Andrew” was placed on the will after November 13, 1917; that the signatures of the subscribing witnesses were “doctored”; all of which should have been considered by the jury in determining whether the documents were authentic.

That there is testimony corroborating that of Mrs. Ellen Parker to the effect that she was told the deceased made his will on November 16th; that on November 18th the wife of deceased left about 9 o’clock without saying anything, re

There is other testimony of a similar nature which the contestants contend was excluded from the consideration of the jury by the directed verdict. And that the question of whether or not the deceased was of sound and disposing mind could not have been considered by the jury without at the same time considering whether or not he declared the will to be his, or that it was signed by him, or at his request, or that said will was signed in his presence by two subscribing witnesses. “All these circumstances were necessary to determine whether or not he was of sound mind.”

But, as we have shown, the evidence addressed to the execution of the will would not support findings that it was not duly executed and the court therefore properly directed the jury to find for proponent on those five issues. In respect to the claim “that all these circumstances were necessary to determine whether or not he was of sound mind,” it is sufficient to say that there is no indication in the record that such evidence was not considered and weighed in determining the sixth issue—the mental unsoundness of deceased.

[11] 6. Under this specification of error it is claimed that the will duly executed by deceased on June 2, 1916, has not been revoked. The disposition of the questions as to the due execution of the will, the lack of undue influence, and the mental soundness of the testator render it unnecessary to discuss this point, since section 1296 of the Civil Code provides that a prior will is revoked by a subsequent will if such subsequent will contains provisions wholly inconsistent with the terms of the former will, and furthermore, the will executed and admitted to probate contains a provision expressly revoking all former wills.

7. By this specification of error the contestants contend that “This was the third trial in the Superior Court of this action. The jury, in the first trial, decided the man was of unsound mind; the second trial the jury disagreed, and we believe the jury rendered their verdict in this trial because of an error in instructing them, as before discussed. The jury rendered their verdict under the influence of passion

There was no error in refusing to grant a new trial for the same reason that it was not error to direct the verdict; and further, the record does not in any way show that the verdict rendered by the jury is the result of passion and prejudice.

[12] 8. 'The final point is that the court erred in instructing the jury that the offering and admitting to probate of the purported will established prima, facie that the document was valid. It is contended that the instruction erroneously states that the admission of the purported will to probate created a presumption in favor of the validity of the said will, thus erroneously placing upon the contestants a greater burden of proof to overcome the presumption that the deceased was competent to make a will.

The instruction follows:

“Prior to the commencement of this action defendant herein had offered for probate as the last will of Andrew Holloway the document as to which the present controversy arises. This document was admitted to probate at that time. This prima facie established such document as the will of Andrew Holloway and the competency of Andrew Holloway to make a will. On this contest the law presumes that Andrew Holloway was competent to make said will, and the burden of proving that at the time of the execution of said will Andrew Holloway was incompetent to execute a will, is upon the plaintiffs and unless plaintiffs sustain such burden by proving by a preponderance of evidence that said Andrew Holloway was not at the very time said will was made competent to make the same your verdict must be for the widow, Annie Holloway.”

It is said in Estate of Relph, 192 Cal. 451 , 459 [ 221 Pac. 361 , 364]: “The contest of a will on the other hand, while a proceeding in re to, is at the same time an adversary proceeding, the parties to which consist, on the one hand, of those persons interested in the estate who have appeared and filed written grounds of opposition to the probate of the will (commonly referred to as the contest); and, on the other hand, those persons interested in the will who have appeared and filed written answer thereto. The only issues of fact involved therein are those which are framed by the allega

We do not think the instruction can be understood to declare that in a will contest the mere fact that the will had been previously admitted to probate would increase the burden of proof of the contestants. Reading the third sentence separately it states the rule correctly as applied to the admission of a will to probate where there is no contest. “Under this rule, as long as the probate stands the will must be recognized and admitted in all courts to be valid, the unrevoked decree standing as absolute and conclusive proof of its genuineness.” (Tracy v. Muir, 151 Cal. 363 , 370 [ 121 Am. St. Rep. 117 , 90 Pac. 832 , 834].) The conclusion that the third sentence is entirely independent of and not to be read into the succeeding or fourth sentence finds support in sentences one and two, for they refer to a point of time anterior to the contest. “On this contest” is the opening phrase in sentence four. This sentence is confined to , contest of a will and is substantially correct, for it states the burden of proof is on the contestants and, of course, this is so whether the law “presumes” the testator was competent to make a will, as suggested by the instruction, or because of the rule that the party having the affirmative of an issue must prove it. (Sec. 1981, Code Civ. Proc.) The instruction does not purport to state any change in the rule of the burden of proof merely because the will had been admitted to probate.

The contestants cite Estate of Nelson, 191 Cal. 280 , 286 [ 216 Pac. 368 ], in support of the asserted error in the instruction. In that case the holographic will was admitted to probate, and, on the ground the will was not entirely in the handwriting of the testator, it was sought to revoke the probate thereof. It was claimed that the dispositive clause of the will was written by the proponent, who was named the sole beneficiary. Judgment went for the eon-

The judgment is affirmed.

Waste, J., Richards, J., SeaweII, J., Shenk, J., and Lennon, J., concurred.

Myers, C. J., did not participate in the foregoing decision.