The courts cannot set aside wills for undue influence, unless there is direct and substantial evidence establishing such influence. as will vitiate the will under the established rules of law."

set aside a will by which testator left his estate to his partner's children, evidence that the partner circulated a report that testator had visited his relatives, had been badly treated by them, and would not leave them any portion of his property, and thus suggested it to testator's disordered fancy, was insufficient to sustain a finding that the will had been procured by the fraud of the partner, where there was no evidence that testator ever heard of his partner's statement, and it appeared that testator had previously made a similar statement. Id.

Testator made a will in favor of a brother, with whom he lived, and to the exclusion of the children of two deceased brothers. He was 65 years old, of sound mind, but in bad health, and no pressure had ever been brought to bear upon him as to the disposition of his property, and he alone gave instructions as to his will. The will when executed was taken in charge by the scrivener, and there was no proof that the brother knew the will had been made. The witnesses to the will testified to the capacity of the testator, his reading of the will, and approval of a clause' excluding the contestants. None of the contestants were ever denied access to him, but saw him often. One of the contestants testified that the testator seemed afraid of his brother, and that after the execution of the will he cautioned the witness, when he saw the brother approaching to say nothing; that the property would all be his by and by. The testator took a strong interest also in another of the contestants, a boy 13 years old. He often expressed an intention to provide for the boy, and the boy finally went to live with him at the house of the brother. This was three years or more before the execution of the will. The boy testified that whenever the brother found that the testator had been to see any of the other contestants he would curse and abuse him, and that, when the witness had been getting a whipping at the hands of the brother, the testator would tell him he was unable to interfere, as he would expect a whipping himself if he did. Held insufficient to establish undue influence. In re McDevitt's Estate, 30 P. 101, 95 Cal. 17.

On an issue as to whether a will was procured by undue influence of testator's wife, it appeared that testator frequently went alone to the office of the attorney who drew the will, and who had no acquaintance with testator's wife; that he conversed freely and intelligently respecting the provisions of the will; that about three years afterwards he confirmed the will, in a codicil thereto, at which time he also appeared to be mentally sound; that testator's wife, in his presence, and about a year after the will was executed, gave directions in respect to the work on their residence; that testator was always anxious to please his wife, and was more jovial when away from her; that five years afterwards a difference of opinion as to certain domestic affairs was settled in accordance with his wife's views; that the testator dealt largely in real estate, and conducted all his negotiations alone. Evidence as to testa

74 In re Hodgdon's Estate, 138 P. 111, 23 Cal. App. 415.

To set aside a will for undue influence clear proof is required. In re Seiler's Estate, 176 Cal. 771, 170 P. 1138.

HON.PL.& PRAC.-67

(1057)

Evidence of the inequitable character of a will is insufficient, in the absence of other testimony of undue influence, to justify setting it aside.75

mentary intent was given by the contestants themselves, who were children of the testator by a former wife, to the effect that the testator, at various times after the execution of the will, said he intended to divide his property between them. Held insufficient to show undue influence. Herwick v. Lang. ford, 41 P. 701, 108 Cal. 608.

Where, three days after a will was executed, a codicil was added, naming three executors, evidence by contestants that two of the executors so named had sought to obtain from the attending physician, during such interval, management of the estate, and that after the execution of the codicil one of such executors had stated that the reason the codicil was made was that they want. ed some one there, rather than at another city, to manage the estate, had no tendency to show undue influence, in the absence of any evidence that either of such executors had any interview with the testator, or ever spoke to him, or to any one for him, with reference to the codicil or disposition of his property. In re Nelson's Estate, 64 P. 294, 132 Cal. 182.

Evidence of mere opportunity to unduly influence testatrix is not sufficient without a preponderance of evidence that such influence was exercised, and induced a disposition of property other than would have been made without it. In re Black's Estate, 64 P. 695, 132 Cal. 392.

Testator, before executing his will, consulted an attorney who visited him for that purpose. At this interview no member of his family but his wife was present. His wife's community interest was explained to him to consist of one-half of the estate, which he declared would be sufficient for her, and he then, after discussing the matter with the attorney, determined the shares to be given his children. Held sufficient to overcome the presumption of undue influence arising from confidential relations between testator and the child receiving the largest share, coupled with activity on his part in preparing the will. In re Higgins' Estate, 104 P. 6, 156 Cal. 257.

At the time of the making of testatrix's will both herself and husband were afflicted with incurable diseases, and were both being cared for in hospitals. Testatrix knew that her husband could live but a short time, and had provided for his maintenance and burial. Neither testatrix nor her husband had any relative who would have succeeded to her property in case of intestacy. A short time prior to her death, while she was mentally competent to make a will, she notified her physician who had attended her for several weeks during her sickness, and to whom she had paid only $20 that she desired to make a will leaving all her property to him. He thereupon called an attorney, who, at her request, and in the physician's absence, drew the will, which she executed in accordance with such desire, and which she delivered to the physi cian. Held, that a finding that the will was not the result of undue influence was sustained. In re Wickes' Estate, 72 P. 902, 139 Cal. 195.

The principal devisee under a will had persistently urged the testator to make the will, and took him to the home of the devisee's mistress, against the protests of testator's physician and nurse, when he was dangerously ill. Tes

75 In re Kilborn's Estate, 162 Cal. 4, 120 P. 762.

Under the statute providing that no will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the testator's death, nor unless its provisions are

tator had resisted previous importunities of such devisee to make a will in his favor, and had once expressed a wish to be taken away, saying that they were robbing him. The devisee accused the testator of ingratitude, and, though such devisee could not speak English, he testified that the dying testator executed and published the will exactly as required by law. The only persons present were the beneficiaries, devisee's mistress, and the executor, a saloon keeper, whom the testator exempted from giving bond, and who otherwise could not have qualified. The will was drawn by a lawyer at devisee's instance, who did not consult the testator, but submitted the will to the devisee after preparing it. Held, that a verdict finding that the will was the result of undue influence was not against the weight of the evidence. In re Silvany's Estate, 59 P. 571, 127 Cal. 226.

The niece of testatrix, who had expressed her intention to break up the intimacy between testatrix, and her sister, was sent for during testatrix's last illness, and shortly after her arrival differences arose between the testatrix and her sister, ending in the sister leaving the house. The niece held long whispered conversations with testatrix, who was in an enfeebled mental and physical condition, and appeared to be dominated by her niece; and at the close of one of these conversations deceased sent for her niece's husband, and a will was made in his favor. Held, that the facts justified a verdict of undue influence in the procurement of the will. In re Kendrick's Estate, 62 P. 605, 130 Cal. 360.

On an issue whether a will leaving all of testator's property to his wife was obtained by undue influence on her part, one of the subscribing witnesses testified that testator came into his office alone, and asked him to write the will; giving him a memorandum, and not indicating in any way that he was being coerced. The wife was not present. There was no evidence that she had ever asked him to make a will. A washerwoman testified as to quarrels between husband and wife, and said the wife was "boss," and others testified that he said she wanted all his property, etc. Held not an abuse of discretion to set aside a finding of undue influence. In re Motz's Estate, 69 P. 294, 136 Cal. 558.

Finding of undue influence in execution of will devising to deceased's mother land which her husband had given her, with agreement by her to devise it back to him if she died before he did, will not be disturbed on appeal; it appearing the will was made two years after their marriage, at which time he was 70 years old and she 30 years old, and 8 months before her death; that she was very ill at and several months before and after the time of executing it, though her mind was sound; that the relations between them were very pleasant till they returned, a year after this marriage, to where her folks lived, when trouble arose between them, as to the cause of which the evidence was conflicting; there being evidence that she was always affectionately attached to him, notwithstanding the hostility of her family, and their endeavor to destroy her affection for him; that she claimed he was as good to her as he could be, but her mother would not believe it; that her mother tried to keep

clearly proved by two credible witnesses, where the testimony of two witnesses coincides as to the provisions made in a lost portion of a will, the court is authorized to establish such provisions, though such witnesses may differ as to the exact language used by the testator,76 or give conflicting testimony."

them apart, and to a great extent kept him from her; that her mother had conversations with her about disposing of her property, and knew it was to be devised to her; and that her brother had the will drawn, and she went with her mother to execute it, and then gave it to her. In re Tibbetts' Estate, 69 P. 978, 137 Cal. 123.

76 In re Camp's Estate, 66 P. 227, 134 Cal. 233; Rev. Laws 1910, § 6227. On application to probate a will as destroyed, the question whether money was given as part of the residue, as testified by one attesting witness, and as such charged by statute with debts and specific legacies, or whether it was given as a specific legacy, as testified by the other, charged by the will with those burdens, while more a matter of form than substance, is nevertheless a question materially affecting disposition of the personalty, and disposition thereof cannot be held to be distinctly proved by two witnesses, as required by Code Civ. Proc. § 1339, declaring no will shall be proved as destroyed unless its provisions are distinctly proved by at least two witnesses. In re Patterson's Estate, 102 P. 941, 155 Cal.. 626, 26 L. R. A. (N. S.) 654, 132 Am. St. Rep. 116, 18 Ann. Cas. 625; Smith v. Quigley, 155 Cal. 626, 102 P. 941, 26 L. R. A. (N. S.) 654.

Where a will has been destroyed by public calamity during the lifetime of the testator without his knowledge, the testimony of one witness who had personal knowledge of its provisions, and the testimony of another witness who had gained her knowledge by having it read to her by the first witness, was not sufficient. In re Guinasso's Estate, 110 P. 335, 13 Cal. App. 518.

A will was drawn at testatrix's request by her attorney, and was executed in his office, under the direction of his law partner. Testatrix said to him that she wanted him to call witnesses to "this will of hers," the persons who signed as witnesses being then in the room. The attorney thereupon asked them to witness the document, whereupon testatrix and the witnesses immediately signed the instrument in the presence of each other, there being writ ten after her signature and above theirs the usual attestation clause reciting that they signed at her request and in her presence, and that she declared the instrument to be her last will in their presence. Held, to warrant a finding that the will was duly executed, though some of the witnesses could not recall what occurred. In re Johnson's Estate, 93 P. 1015, 152 Cal. 778.

The evidence as to the execution of a will proved the signature of testatrix, the signatures of the subscribing witnesses, and the fact that they signed it

77 In re Silva's Estate, 169 Cal. 116, 145 P. 1015.

That the two attesting witnesses were not in complete harmony as to what was said and done, and were doubtful as to their recollection of what testator said and as to whether he signed in the presence of witnesses or acknowledged the instrument to be his will to them, held not to show that the will was not duly executed. In re Ballard's Estate, 56 Okl. 149, 155 P. 894.

Unless the contents of a lost will are clearly proved, it cannot be probated.78

Whether a will was canceled is to be determined from the intention of the testator.79

1121. Court records and files

The record entry of a judgment is indispensable to prove the evidence of it when it is made the basis of a claim or defense in another court.80

The records of the county clerk showing the approval of the appointment of a deputy sheriff is some evidence of the appointment sufficient to make the question an issue of fact for the court or jury.81

The order of the county court discharging a guardian of an Indian because the ward had reached his majority is not competent evidence to establish the ward's age in a subsequent action to cancel a conveyance of his lands executed after such order,82

A verified petition is not evidence on the trial of an action for a perpetual injunction.88

in her presence and in the presence of each other. No evidence impeaching the execution of the will in any respect was offered. One of the attesting witnesses was dead, however. The other did not remember whether testatrix signed the instrument or acknowledged her signature to it in his presence, or whether she declared it to be her will in the presence of the attesting witnesses, or whether she requested him to sign as an attesting witness, but he did not testify that these things did not take place. Held, that there was sufficient proof of the execution. In re Tyler's Estate, 53 P. 928, 121 Cal. 405. 18 In re Kidder's Estate, 6 P. 326, 66 Cal. 487.

Evidence that a will was in testator's possession from the time of its execution until his death, that immediately after his death it was found among his effects in his trunk, and that when so found, ink lines were drawn over and through certain words was sufficient to authorize a finding that the cancellation was done by testator with the intent and purpose of revoking the part of the will through which the lines were drawn. In re Wikman's Estate, 84 P. 212, 148 Cal. 642. On the issue of cancellation of a portion of a will, evidence that at the time of the execution of the will testator took it away with him, and that immediately after his death it was found in his trunk among his other effects, is sufficient, in the absence of any showing to the contrary, to justify a finding that testator had possession and control of the will from the time of its execution until his death, notwithstanding testimony that testator several times showed the will to witness and offered to let her keep it and that she had it in her hands. Id.

80 Ex parte Stevenson, 94 P. 1071, 20 Okl. 549.

81 Correll v. Morgan (Okl.) 174 P. 509.

82 Johnson v. Alexander (Okl.) 167 P. 989.

83 Jones v. Johnson, 47 P. 523, 57 Kan. 629.