*1 оp March, 1917.] Estate Collins. nothing is to that ever con-
order. There indicate he was conflicting other or interests. We must cerned with assume attorney he is not an for the executor decedent’s because, appoint him estate, naturally, the court would not guardian if he We no Mrs. Crocker’s estate were. see any particular. to disturb the court’s action in reason judgment is affirmed. Lorigan, J., concurred. Hеnshaw, J., ] Department March 20, No. F. 7913. One. [S. 1917. COLLINS, De Matter of the Estate of BETSEY H. CHAPPELLE, Con ceased. ALBERTINE COLLINS WOODHAMS, Ap Respondent, testant and W. E. v. pellant. may Appeal prom Revoking
Will—Executor Probate.—Where Order ap- duly a is will has probate been to executor admitted repre- estate, pointed he up and has taken the administration duty sents all of the It then becomes beneficiaries of the will. to protect he has interests, executor as such Oppose thereof; conse- a final contest of the will decision until judgment quently, may an he an adverse appeal maintain the lower court. may Appeal prom Refusing person Id.—Executor Probate.—A Order petitions probate, its thereof, in a named will as executor who “party aggrieved” by refusing admit the will is decision probate, may provided in appeal section 938 of therefrom as the Code of Civil Procedure. — Insanity — — stinginess, repul-
Id. Extreme Insufficient Evidence. filthy personal habits, temper, jealousy, sive a dictatorial and or ill disposition, propensity bargains and a hard disagreeable drive They insanity or of mind. have not constitute unsoundness do greater the inference of unsoundness than to accentuate effect other founded on circumstances. aphasia Senile Deterioration.—Attacks
Id.—Manifestations degree showing a considerable of senile physical disabilities insanity deterioration, of themselves establish the do not making contracts person incapable of or will. render a essential to Insanity Necessary insanity Avoid Will.—The Id.—Nature insanity must be of such broad either char- will avoid a which op incompeteney aoter as establish gеnerally, specific or some form, and narrower under which the testator is the victim of some hallucination or delusion. In the latter case will must have produced part by been whole or in delusion hallucination. Id.—Opinions Experts Insanity—Weight as to oe Evidence.—The *2 testimony expert insanity, of witnesses as hypothetical based questions skillfully call framed to for an answer favorable the party asked,.is in whose behalf it is evidence the weakest and most
unsatisfactory. Id.—Opinions Insueeicientiy Supported by opin- Facts.—When ions as to of including unsoundness of those the intimate ac- quaintances, are facts which based on show neither morbid delusion prove incapacity, nor nothing total which personal more than accompanied peculiarities habits, physical weakness, occa- memory, lapses sional failure of and defective nervous and mus- clearly co-ordination, appears cular and it that none of these frail- present at the time execution ties was of of the will or affected in provisions way, evidence wholly its is insufficient to estab-
lish the fact. Superior APPEAL from an of order Court of Santa County refusing probate. to admit Clara a will to P. F. Judge. Gosbey, opinion
The facts are stated of the court. Johnson, Appellant. William H. for Respondent. Blanchard, A. H. appeal revoking
SHAW, This isan from an J. order probate Collins, H. Betsey of of deceased. appellant except
The has no interest the estate such as duly that is the appointed quali- arises from fact he previously probate. fied executor of the will admitted to The will provides legacies, for severаl and devises the of residue Bespondent the contestant. contends that property party aggrieved and, hence, not a executor is he can- appeal. proposition not This not well maintain this is taken. probate When a will has been admitted to and the executor duly up of appointed and has taken the administration represents estate, an all of the beneficiaries the will. hе protect duty interests, It and as then becomes oppose such he has the a contest of the will executor thereof; may he consequently, until decision main- the final 665 March, 1917.] Estate Collins. appeal tain an court. judgment from an the lower adverse (Estate Whetton, ; Estate 203, 98 Pac. Cal. 970] [32 McKinney, Dillon, 447, ; Cal. 454, Pac. Estate [44 743] 683, 685, Cal. ; Hite, 448, Pac. Estate [87 379] Pac. 448]; Logan, 357, 362, 171 Cal. [101 Pac. 388].) only question
The presented in or not the case is whether jury support the evidence is sufficient to the verdict of the disposing was not of mind at decedent sound and the time of the will. execution They was testatrix the wife of Herman had contestant, born Chappelle, children to them. The Mrs. adopted by daughter them their when she was about years marriage two of age, and lived with them until her Chappelle year formerly family about the 1909. The resided Dakota. years previous South Some ten to her death removed Jose, to San' California. In May, Collins left his wife and England, remaining went to there until his death in May, testatrix, 1915. The in her years, later afflicted surgi- leg. 28, 1914, On varicose veins October *3 operation performed cal was on her to remove them. At the making on will, time the March was about she seventy-five years age. Her estate of a consisted farm Dakotа, South valued at about twelve dollars, thousand some- thing deposit savings banks, over two thousand dollars on money amounting loaned on secured notes to two thou- dollars, per- sand five hundred besides some small articles of property. leaving wife, sonal Before his Herman Collins purporting convey a deed executed to the contestant the and the prior residence which he testatrix had lived to his dеparture. placed in This deed he escrow to be delivered to death, upon his has and it since been delivered contestant occupied this until The testatrix residence her death. to her. legacy of bequeaths a five will hundred dollars each to nephew a nieces, a like amount and his wife two bequeaths nephew jointly. It also one hundred dollars to the graves upkeep of the for the оf the father and his wife given All the residue of the estate is testatrix. mother of the Chappelle, contestant. Albertine C. women, acquaint- five other intimate The contestant neighbors testatrix, each testified that and near ances testatrix was not sound mind when she opinion her testimony the will. no other sub- There was .executed ject except that of physicians, two the husband one of them of the contestаnt, who, hypothetical questions in answer to purporting given by to state the substance of reasons witnesses, contestant’s opinion she each stated to be that was of possible briefly unsound mind. We state as given facts for their the witnesses as the foundation opinions.
The testatrix did not enough, eat close to feed she too properly, herself proper so close that she would not take nourishmеnt, anybody eating plenty and if she saw she else thought spent many too much money; she so wanted vegetables for a vegetable nickel peddler that the refused to call at her house. neighbors She wanted the cut down lilac trees so that she her could see when he turned husband the corner. When peaches she give saw husband her three yard his back neighbor very angry woman she became always talking thereafter was about it. She troubled' frequently aphasia, try and would at such times to tell things but not could make herself understood. One these spells occurred about month before the will was made. spells open eyes, trying these she would hard close her give try again to think of the words, up, then then fail. Her mouth was drawn to one side from paralysis operation facial muscles. After the mentioned she shuffled walking, her fеet in ifas she unable to raise them. Dur- were ing years frequently neigh- the last two or she three asked a her, taxes, bor little paying to do errands for such as her buying grieved wood and like. She about her hus- coming writing band not back or to her. There did not seem witness, opinion any good of one common sense be, given instances, however, No were of this lack to her talk. operation in After the 1914 she lost sense. flesh оf common very very and became thin. Prior to that she was rapidly grudge against one of wit- fleshy. She harbored rather *4 given had a chair and her husband the witness nesses because anyone about to have jealous it. She never wanted was she month, visited her for a pleasure. "When the contestant recognize to did not seem her she entered May, 1915, she recognized in a down room, her moment and broke oрera- did not inform the and cried. She contestant veins, October, first tion for varicose She told the March, 1917.] ready go to got go home, she and then when
contestant very dis- begged stay. very suspicious, she her to She was anger agreeable with getting agitated ill-tempered, so and rest. get and have to sit down that she would weak and anything to understand made could not be she Sometimes try would read and she would then except by writing, which would it. if she did not understand She. her head as shake daughter washing for herself her do the not allow more for fear she would use during said visit children gas permitted, turn down the than was and she would water saying that daughter cooking kitchen, was when the nearly impos- wasting. always was a woman it was was She always was nagging scolding, with, to live sible daughter’s extremely penurious. This was true before marriage eating grab she the victuals 1909. Whеn would starving. peas in her hands and eat as if she were She ate spoon eating, fingers, in her when sel- and took meat using pick up partly dom a knife or fork. She would eaten scraps plates sop gravy off the meat up out of other neighbor’s bread, visiting when at a piece plate with making got A after the will she few weeks after a meal. daughter. friends and her She Easter cards to send to some very dis- them, and was much know what to write did not fact, she did not know how of that said turbed because anything finally without put paper, sent the cards it on foolishly except fond the address. She on them hugged piece and kissed a cent money, and on one occasion hand given by neighbor. She trouble with her left had very and she had well, could not move it at times so that she another with the other hand. place it from one move thаt, notwithstand- evidence showed hand, the the other On upon which the physical conditions peculiarities ing these opinions was of that she unsound based witnesses able to and did transact her time she was during all of this difficulty, without serious as before and ordinary business savings from her deafness. which arose except that withdrawing depositing that she was show accounts bank during The two thousand five money period. this therefrom by eight rеpresented as aforesaid loaned dollars hundred times, payable an- at different some bearing interest *5 op Cal. Estate [174 Collins. time, all this agent acting purpose. her for that Be- making fore a loan he would proposition submit the to her and approve she kept would mortgages it. She notes and and all her papers other valuable custody. in her own As each of installment interest becаme due she would take note to Mr. Woodhams’ office, from him receive the interest paid kept and have it credited the note. She ac- close dates, count of never and failed to look after the interest promptly as due, it became to select the note from among papers. her had She loaned one hundred dollars husband, Chappelle. contestant’s Dr. May, 1915, In when visiting says the contestant was and when testatrix, she she believes the testatrix was of unsound the testatrix her handed this note give told and her it to her husband present. as a The objection contestant received it without and delivered it as instructed. The testatrix knew the date when taxes due, became and preparations made in advance paying for the same. just She loan made one three weeks making will, money beforе the and she withdrew money deposited shortly the bank and therein before shortly making after Those will. who transacted they question business with her testified that saw no cause capacity her to transact business or the soundness of her mind. The will itself bears evidence a rational mind. view of property the amount and character her her family dispositions entirely relations, the her seem stating She herself wrote instruction reasonable. how made, prepared was to it was be in accordance therewith prolonged after a extending consultation over two days, secretary brought Mr. Smith, Mrs. Woodhams. She correctly farm in for the Dakota order have it de- deed comparing description scribed in the will. She assisted reading paper in the she deed, the will with that one reading Mrs. the other. Some fourteen months Smith before wrote the will she a letter to Woodhams date of concern- language ing loans. one of the Its clear and forcible and rational, showing capacity a business the ideas sound a rather unusual character so old woman. There change no evidence of sudden condition. difficulty aphasia moving and the left hand were shortly making first before the of the will, manifested peculiarity habits, dispositiоn so character, had, March,. 1917.] inwas. many years while she appears,
far as existed for normal condition. ill habits, filthy personal repulsive or stinginess,
Extreme disposition, disagreeable temper, dictatorial and jealousy, bargains not constitute propensity do and a to drive hard in Estate said insanity As was or unsoundness of mind. 794], have Pac. Redfield, *6 greater of unsound- the inference effect “than accentuate they do In case this ness founded on other circumstances.” that shows not evidence effect, even have for the that great in as peculiarities testatrix had habits had these that degree nothing indicate many is years, and there origin in mental condition. had their a diseased after The as she walked fact that she shuffled her feet veins, operation October, 1914, for leg in varicose on her tendеncy to. physical disability, showed it had no direct prove insanity. aphasia and mental or The attacks of disease difficulty being of moving hand, evidence one there degree of a considerable latter, of the show but one instance things themselves not of But these do senile deterioration. person in insanity to render a is that essential establish commonly held a will. “It is capable making contracts оr of patient where the cases of dementia that from those aside any conceptions whether true power to form has not mental insanity test of things, of the true false, relations or of the sup person believes delusion; persistently if that is mental against all evi existence, and posed which have no real facts assumption upon the probability conducts himself dence and under a morbid delu еxistence, he as to that belief of their is insanity. is But before a in that sense sion, and delusion ‘its rejected appear must on that account it can be or caused might have been or provisions were dispository operative which are not delusion’; delusions by the affected persons or relate to the testamentary not act—do upon the invalidate it.” permitted to by not it—are objects аffected 794].) 637, Pac. 116 Cal. Redfield, (Estate [48 testatrix had not pretense that the is case there In this conceptions reasonably accurate power to form eccentricities things. peculiarities Her true relations degree of referred dementia do not constitute quoted. With just re- passage in the exception first noted delusions, stated, the existence there test spect to the true Cаl. [174 absolutely there is physi no evidence. It obvious that is gave cians opinions who of unsound mind she was by measuring were perfect exact and than more standard required is by wholly healthy, the law: mind normal from free arising defective or co-ordination disease decay. anything may a medical con sense short of this insanity stitute or mind; law unsoundness of but the does perfection manage not give capacity demand such one’s affairs and make dispositions property. valid law defining insanity, requires which will avoid such an act “either insanity of such broad establish men character tal incompetency specific or generally, narrower some form of insanity, under which the is the victim of testator some (Estate Chevallier, hallucination or delusion.” 161, 168, Cal. 130].) Pac. class And even the latter [113 the act to be avoided must havе produced been in whole part (Ibid.) the delusion or hallucination. best,
At testimony expert insanity, witnesses as to on hypothetical based questions skillfully for' framed to call an answer favorable party asked, to the whose behalf it (Estate unsatisfactory.” “is evidence weakest and most Dolbeer, 695].) 86 Pac. 243, Ann. Cas. *7 of When, opinions case, as in the as this to unsoundness of including acquaintances, those of intimatе are based the which show neither morbid delusion nor total mental facts prove nothing personal incapacity, peculiari which more than accompanied by physical habits, weakness, ties and occasional lapses memory or failure defective nervous and mus clearly co-ordination, appears cular it that none these present frailties was at the time the exeсution of the will any provisions way, wholly or affected its in the evidence is the to establish fact. insufficient reversed. The order is
Sloss, J., Lawlor, J., concurred.
Hearing in Bank denied. following hearing denying in Bank the court filed a the April 16,
opinion on 1917: opinion THE COURT. In the heretofore rendered the department Woodhams, in held that the appellant, court March, 1917.]
sufficiently in upholding interested will of the the deceased to maintain appeаl an from the in controversy, order inadvertently assumed that an revoking it was order the probate will, of the fact being the that it was an order re- fusing to admit the will to a probate, upon and it was made contest of the will probate. before The record on appeal in typewriting provided as in section 953a of the Code Procedure, Civil party and neither for the information printed of the court in their from, briefs appealed the order any part pleadings (Code the Proc., the case. Civ. 953c.) sec. difference the facts require does not a different
ruling. Woodhams was named the will as executor thereof petition probate and as such he for thereof, filed the respondent which the (Code filed the contest. The code Civ. Proc., 1299), provides any sec. executor in- named may petition proved. court have the will This clearly prosecute authorizes the executor to file and peti- appeal may final An tion to a determination. be from taken refusing probate. an to admit a will Having order authority prosecute to file petition, thereto, stands, respect fiduciary with he relation to all duty, thereunder and is his the beneficiaries and accord- right, proceedings all ingly his to take necessary to just validity, determination of its including secure an question. an adverse decision from on the appeal He has authority also, under section of the Code of Civil Proce- joining him persons without dure, to sue for whose prosecuted. action is In this benefit the case he is interested will, position as executor named because probate, him petitioner for its admission makes аs legatees named in purpose the will. trustee by right, “party virtue of that capacity, and he is a In that by decision, may appeal who one there- aggrieved” in section 938 of the provided Code Civil Proce- decisions this court on are no the exact There dure. *8 everywhere recognized. (40 principle Cyc. point, Cyc. Ency. 997; 206; PI. Pr. & Cor. 1229; Jur. 622.) rehearing denied.
Petition notes quarterly. These loans semi-annually, and some nually, some during Wóodhams, appellant, who, for her made were