Estate of Albertson

STURTEVANT, J.

The decedent died March 11, 1934. Later a document purporting to be her will, dated February 27, 1934, was admitted to probate. Thereafter L. E. Inman, B. F. Barnhart, V. Warren, and C. T. Headen, three sisters and a brother, being the children of Mrs. Eva Headen the surviving widow of George Headen, deceased, who was a half brother of the testatrix, appeared and filed a contest. Two of the legatees named in the purported will appeared and answered. By its verdict the jury found (1) that the decedent was not of sound mind at the time the purported will was executed; (2) that she was not able to understand the nature of the act she was performing, to understand and see the nature and situation of her property, to remember and understand her relations to the persons who had claims on her bounty and who were affected by the provisions of said will; (3) and that the alleged will was executed by decedent Avhile acting under undue influence. Thereafter the proponents made a motion for judgment notwithstanding the verdict. The trial court granted the motion in so far as it was based on the third division of the verdict as returned by the jury. As to the other portions of the verdict the motion was denied. Thereafter the proponents made a motion for a new trial. That motion Avas denied by operation of Iuav. From said orders and judgment the proponents have appealed.

The first point made by the proponents is that the verdict is not supported by the evidence, however we think said contention may not be sustained. The contestants presented their case in such a manner as to present two different theories. They claimed the insanity of the decedent was of such a broad character as to establish mental incompeteney generally. They also claimed it Avas a form of insanity under

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•which the testatrix was a victim of hallucinations and delusions which had a direct influence upon the making of the will.

Taking up the first theory the record discloses that in the month of October, 1932, the decedent was about seventy years of age and was and had been for some time in ill health. Her home was on a farm adjacent to the city of Santa Clara in Santa Clara County. At that place she consulted local physicians, Dr. Beattie and Dr. Bothe. The latter caused her to be taken to the French Hospital in San Francisco where, on October 13, 1932, she was treated by Dr. Janes. Later she returned to her home but not recovered. In January, 1934, she returned to San Francisco and again consulted Dr. Janes. Acting upon his suggestion she entered the hospital again on March 1, 1934. The will under attack was an holographic will dated February 27, 1934. She died on March 1,1, 1934. After the death of the testatrix an autopsy was performed by Dr. Janes and Dr. J. B. McNaught. The report of the autopsy was full and complete. On the trial Dr. Janes was called as a witness by the proponents of the will. During an extended examination he made a very complete statement of the conditions he found. The autopsy disclosed the following: 1. Leukemia, myelogenic; 2. Anemia secondary; 3. Splenomegalia; 4. Hemorrhage, gastrointestinal mucosa; 5. Arteriosclerosis, general; 6. Arteriosclerosis, local, renal arteries with scars in kidney; 7. Arteriosclerosis, local aorta; 8. Tuberculosis pulmonary, apical, healed; 9. Accessory spleen; 10. Fibromyoma of uterus (calcified) ; 11. Atrophy of pelvic organs; 12. Appendicitis, chronic, obliterative ; 13. Diverticula, large bowel, multiple. Dr. Janes testified the first seven were causes of death. He also testified as follows: The decedent called at his office on February 13, 1934. He made something of an examination and asked her to return, which she did on February 21st. At that time he thought she was in a serious condition and directed her to go to a. hospital. He next saw the patient on March 1, 1934, at the French Hospital. She was suffering from acute infection. She had an enlarged spleen. The enlargement was on the left side and the patient complained more or less of her stomach. He then diagnosed the case as enlarged spleen and possibility of cancer of the stomach. Prior to March 11, 1934, he saw the patient once a day and sometimes