87 Cal. 155 | Cal. | 1890
This is an appeal by W. W. Gray, petitioner for the probate of a proposed will of Man Wo
The only evidence in the case was that introduced by the appellant. Two persons testified that they were subscribing witnesses; and their testimony (if they were .■ credible witnesses) might be sufficient to establish the due execution of the proposed will. Another witness also testified, with some degree of positiveness, that the signature to the will was that of the deceased. The contestant, E. H. Cox, who had been appointed and was administrator, did not introduce any evidence. Still, the court must have believed that the will was a forgery; for the only finding of fact is, “ that the will propounded by . said Gray is not genuine, and was not executed by said Man Wo Chan, deceased, in his lifetime.” Of course the court below, sitting as a jury, was the judge of the credibility of the witnesses; and if the court had decided the issue upon the evidence before it, and had based its judgment upon a disbelief of the witnesses, we would not disturb it. It is evident, however, that the court considered matters not before it at all.
Appellant presented a statement on motion for new trial, which included the evidence and proceedings introduced and occurring on the trial of this contest between the appellant and the contestant, Cox. The statement then contains the following: “ On motion of counsel for contestant, Cox, and against the objection of counsel for respondent, Gray, the following amendments and facts that had been previously shown in the case, viz., the estate of Man Wo Chan, and were adverted to on the argument of the will contest, were made a part of this statement, to the allowance of which amendments counsel for respondent duly excepted. The amendments are as follows.” Then follow statements that Ah Qui, a brother of the deceased, had on a former occasion signed a request that Cox be appointed administrator; that there
Judgment and order reversed, and cause remanded for a new trial.
Thornton, J., and Sharpstein, J., concurred.