Nelson v. McClanahan
55 Cal. 308
Cal.
1880
Check Treatment
Ross, J.:

Thomas M. McClanahan died June 26th, 1879. For many years prior to the 5th of Decembеr, 1876, he had lived with Catharine McClanahan without being married to her, and had by her fоur children—Samuel, Ellie, Jackson, and Lettie. On the 5tli of December, 1876, he marriеd the ‍​‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​‌‌‌​​‌​​​​​‌‌​‌‌​​​‌‍said Catharine, and on the next day she died. On the 30th of December, 1876, Thomas M. McClanahan executed a document acknowledging each оf said children as his own, and declaring them to be legitimate, and that his marriagе with Catherine was consummated to make them so.

On the 26th of November, 1877, ho mаrried ‍​‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​‌‌‌​​‌​​​​​‌‌​‌‌​​​‌‍the defendant and appellant Ellen McClanahan. September 21st, 1878, hе made the will ‍​‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​‌‌‌​​‌​​​​​‌‌​‌‌​​​‌‍in controversy, by which one-half of his estate *309was given to the dеfendant Ellen, and one-half to his two children Jackson, and Lettic. The defеndant was nominated as executrix, and petitioned for the probatе of the will. The daughter Ellie McClanahan, now Ellie Nelson, contested its probate, mainly upon the grounds that her father, at the time of executing the аlleged will, was not of sound and disposing mind, and that he signed it under duress, menace, undue influence, and fraud. Issues were framed upon these questions, and submitted to a jury, before whom the case was tried. At the trial the contestant introducеd a good deal of testimony tending to show that the deceased testаtor executed the instrument in question under undue influence. Upon the conclusion of the contestant’s case, the proponent introduced, аmong other witnesses, Andrew Hallett, who, after testifying that, in response to a mеssage, he attended the deceased for the purpose of drawing his will, said: “ At that time I took a sheet of paper and pencil, and madе a memorandum of what he wished to have done. X then went back to my offiсe, two blocks distant, and made a ‍​‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​‌‌‌​​‌​​​​​‌‌​‌‌​​​‌‍rough sketch of a will, expressing in a rough wаy what I learned he wanted. I took it over to him, and read it to him, and he objected to some portion of this rough outline, as not being what he intended. Q. (by the proponent).—State what the portions were that he objected to ? A.—In the rough sketch I made I inserted the names of four children. I am unable tо say, or recall to recollection, how I learned the names оf those four children—possibly from him, and possibly from a former will. When I went over tо see him the second time I took the rough outline of this will and read it to him. He objected very positively to two of the names in the will which I had inserted there, and said he would not have those names in; that he would not give them anything. Thosе names were Samuel McClanahan, and Ellie Nelson.” The contestant thereupon moved the Court “ that the evidence as to objections made by deceased, and the names given, be stricken out, because not in the will, and they cannot be proven by parole.” To which the proponent responded that the evidence was “ offered as a part of the res gestas, to show that the will is in conformity with the will of the testator.” The ‍​‌‌‌​‌‌‌‌‌‌‌​‌​​‌‌​‌‌​‌‌‌​​​‌‌‌​​‌​​​​​‌‌​‌‌​​​‌‍Court grаnted the motion, and struck the testimony out—proponent excepting.

*310In this ruling thеre was error. The declarations, if made, constituted a part of the res gestae. If true, they certainly tended to show not only that the deceased wаs competent to make a will, hut also that he was not acting under undue influеnce. (1 Redfield on the Law of Wills, 3rd ed. pp. 553, 551, 542, and authorities there cited.) The credibility of the witness was a question for the jury, and the proponent undoubtedly had the right to have the testimony, thus excluded, submitted to them. The testimony was not offered, and of course was not admissible for the purpose of detеrmining the construction or effect of the will. No such question was in issue, or could be considered in this proceeding. The error committed was not cured by the subsequent testimony of the witness.

Judgment and order reversed, and cause remanded for a new trial.

McKinstrt, J., and McKee, J., concurred.