Estate of Harkleroad

BARNARD, P. J.

This is an appeal from a portion of an order admitting a will to probate.

Mrs. Harkleroad died on December 18, 1940. In a will, executed two hours before her death, she appointed her mother, Gladys H. Hussey, as executrix, gave certain real property to her mother together with all personal property

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located thereon, gave all the rest of her property to her mother in trust for the benefit of her three minor children, and provided that her husband should receive nothing. The mother filed a petition for the probate of this will. The husband of the deceased filed a contest before-probate. At the hearing, by mutual consent, the court proceeded to hear the petition for the probate of the will, allowing the attorney for the contestant to examine the witnesses (see

Estate of Relph,

192 Cal. 451 [221 P. 361]), and no evidence was offered by the contestant who later filed a dismissal of his contest.

In its order the court found that the portion of the will which purported to give certain real and personal property to the mother was made under the undue influence of Mrs. Hussey; that at the time of the making of the will the deceased was on her deathbed, extremely weak and unable to speak; that Mrs. Hussey was the mother of the deceased, was active in the preparation of the will and unduly profited thereby; and that the remainder of the will was the free and voluntary act and will of the deceased and should be admitted to probate. It was then ordered that probate be denied to that part of the will which purported to give the real property and the personal property located thereon to the mother, and that the remainder of the will should' be admitted to probate. This appeal was taken by Mrs. Hussey, who had been appointed special administratrix, from those portions of the order which found to the effect that undue influence had been used by her, and which denied probate to that part of the will which left certain real and personal property to her.

The sole question presented is whether the court’s action in this regard is sustained by the evidence, in which there is no conflict and all of which appears in the testimony of witnesses offered by the appellant. The testatrix was in a hospital, her mother was with her and it was known that she could not live. During the night of December 17-18, two nurses had called on her very frequently and she had been able to answer yes or no when they asked her if she wanted various things. About 6:00 o’clock on the morning of December 18, a nurse overheard the testatrix and her mother “talking” about some matters that needed legal attention, and reported this to the head nurse. The head nurse then told the mother that if she needed an attorney she better call him at once. The mother asked if it would not be “soon