Jеssie Cushion, aged 58 years, died on April 14, 1936, in Los Angeles County, leaving a last will and testament dated July 14, 1934, by which she bequeathed to her son, the rеspondent herein, a diamond ring, and devised and bequeathed to her daughter, the appellant Jean E. Flanagan, all the rest of her property, both real and personal. Charles E. Pearce, who was named therein as executor thereоf, having predeceased the testatrix, the appellant Edwin L. Carty was duly appointed as administrator with the will annexed, the nomination of said son and daughter to that effect having been duly filed, and the will was admitted to probate on May 18, 1936. Thereafter, tо wit, on October 19, 1936, respondent son filed his contest and petition for revocation of the probate of the said will upon the ground, among others, that testatrix at the time she executed her will was not mentally capable of making a valid will. Appellants, the proponents of the will, filed their answer in opposition to such contest and upon the issue so joined the cаuse was heard by the trial court sitting with a jury. During the course of the trial all questions were disposed of upon motion for nonsuit, excеpt one issue which the trial judge in his instructions to the jury stated as follows:
“The one issue before you is whether or not Mrs. Cushion during the very day shе made this will, on the 14th day of July, 1934, was or was not of sufficient mental capacity and *691 competency to make such a will, and thаt is the only question you have to determine.”
At the close of its deliberations, the jury returned the following special verdict:
“1. Was the will which is in evidence in this proceeding executed by Jessie Cushion as and for her last will and testament? Answer: Yes.
“2. Was said will the free аnd voluntary act of Jessie Cushion? Answer: No.
“3. Was Jessie Cushion of sound and disposing mind and memory and mentally capable of making a will оn July 14, 1934, at the time said will is claimed to have been executed? Answer: No.
‘ ‘ 4. Did she understand the nature of the act she was about to рerform? Answer: No.
“5. Did she have in mind those persons who were the natural objects of her bounty ? Answer: Yes.
”6. Was she able to remembеr the nature and extent of her property? Answer: No.
“7. Was she able to understand the manner in which she wished to dispose of her property? Answer: No.
“8. Was she able to determine to whom she wished to leave her property? Answer: Yes.
“9. At the time said will was signed was Jessie Cushion under the influence of intoxicating liquor to such an extent as to render her mentally incapable of exeсuting a will and incompetent to do so? Answer: Yes.”
From the judgment entered pursuant to said verdict revoking the probate of the will аnd terminating the appointment of the administrator with the will annexed, this appeal is prosecuted by proponents, the sаid administrator and the said daughter of testatrix.
It is here urged that the verdict is not sustained by the evidence, and that the court erred in instructing the jury on the question of undue influence and in propounding to the jury a question as to whether or not the will was the free and voluntаry act of testatrix after the court had already granted a motion for nonsuit on the question of undue influence.
Evidence was produced by respondent to the effect that his mother, the testatrix, was a chronic alcoholic and that by reason of the continuous and excessive use of intoxicating *692 liquor, she was unable to carry on a coherent conversatiоn; that she was unable to concentrate; that she mumbled when she talked and shook when she walked; that she was spasmodic аnd would start to do one thing and forget it and start something else; that her mind wandered; that she could not carry on an intelligible convеrsation except for a few minutes at a time, and that she was not normal.
While witnesses for appellants admitted the constant use by testatrix of intoxicating liquor, evidence was introduced to the effect that testatrix always talked intelligently and cоherently even when drinking and under the influence of liquor; that her memory was good, that she was a very sensible and shrewd woman; a wondеrful cook and that she habitually prepared the family dinner, both with and without the help of her servants; that she was a woman who loved her home, went out very little, and had a large circle of friends and relatives, who were constant visitors in her home, and thаt she appeared normal and of sound mind.
From the foregoing resume, it is readily apparent that the testimony adduced at the trial was directly cоnflicting on the question of mental competency of the testatrix, and that therefore her mental state on the day she executed the will was a question of fact for the jury, to be determined from all of the evidence presented.
There is evidеnce from which the jury could infer that testatrix was not only mentally incompetent on the day when she executed her will but also thаt she was habitually in such a state of intoxication as to be incapable of executing a valid will.
It was held in the
Estate of Gill,
14 Cal. App. (2d) 526, at 528 [
Guided by the principles enunciated in the cited case, it is obvious that the evidence supports the verdict of the jury that testatrix had not sufficient mental capacity to make the will here in question on the dаy she signed the same.
In view of the fact that the trial court in his instructions to the jury directly called attention to the single issue to be dеtermined by it, no prejudicial error was committed by the court when he gave an instruction on the question of undue influence after a motion for nonsuit as to that issue had been granted.
The judgment is affirmed.
Doran, J., and White, J., concurred.