Estate of Gill

DOOLING, J.

Contestant beforeprobate appeals from an order admitting the will to probate after a trial to the court sitting without a jury. Contestant is the surviving sister of the testatrix and the proponent and respondent, who is the sole beneficiary and executor of the will, is testatrix’ surviving brother. The testatrix was a spinster with no nearer relatives.

On August 22, 1950, testatrix was taken to a hospital suffering from a severe heart attack. She was given digitalis and morphine at regular intervals thereafter and placed in an oxygen tent. On August 23 at about 1 p. m. she signed the will admitted to probate and on August 24 at 2 a. m. she died.

Three grounds are urged on appeal: 1. The finding of due execution of the will is not supported by the evidence;

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2. The finding that the testatrix possessed testamentary capacity and was of sound and disposing mind is contrary to the evidence; 3. The finding that testatrix was not acting under the undue influence of respondent brother is not sustained by the evidence. We shall take these questions up in the order stated.

1. The Due Execution op the Will

The will was witnessed by two employees of the hospital. They testified that they were asked by respondent to act as witnesses to decedent’s will; that they went into her room and respondent said to the decedent: “Do you want these two ladies to witness your signature?”; and that the decedent answered “Yes.” The decedent signed the will in their presence and they signed as witnesses in decedent’s presence and the presence of each other, whereupon decedent said “Thank you” and they left the room. They both testified that the document was not referred to as a will nor was the word will mentioned by the decedent or in her presence while they were with her.

Respondent testified that in the presence of the witnesses he said to decedent: “These two young ladies are coming in here to act as witnesses to your will. Do you wish them to act as witnesses?” Decedent answered: “Yes.” After she finished signing it he said: “Is this your will?” and she again answered “Yes.”

It is clear that this was sufficient if believed to satisfy the requirements of Probate Code, section 50.