Fournier v. Clauson

McCOMB, J.

This is an appeal by a contestant (hereinafter referred to as appellant) from an order granting a new trial on the grounds of insufficiency of the evidence after a jury returned a verdict in favor of appellant setting aside a will of Idell Elliot, deceased, on the grounds of (1) unsoundness of mind of the testatrix and (2) that decedent was motivated by undue influence at the time she executed the will.

Facts:

Viewing the evidence in the light most favorable to respondents (proponents of the will) and pursuant to the rules set forth in

Estate of Isenberg,

63 Cal.App.2d 214, 216 [146 P.2d 424], the record discloses that decedent was between 90 and 95 years of age; on January 14, 1946, she executed a will naming appellant as her principal beneficiary; later, on August 14, 1950, she executed another will revoking her previous will and naming respondents as the principal beneficiaries of her bounty.

Question:

Did the trial court commit prejudicial error in granting a motion for a new trial on the ground of the insufficiency of the evidence to sustain the jury’s findings that decedent was (1) of unsound mind and (2) operating under undue influence at the time she executed the will of August 14, 1950?

No.

The following rules are pertinent:

(1) In passing on a motion for a new trial made on the ground of the insufficiency of the evidence to sustain the verdict, it is the duty of the trial judge to review all the evidence, weigh its sufficiency and judge the credibility of the witnesses. He is at liberty to disregard the findings of the jury which are implied from the verdict. He functions as a thirteenth juror.

(Fisher

v.

Zimmerman,

23 Cal.App.2d 696, 700 [2] [73 P.2d 1243];

Estate of Phillipi,

76 Cal.App.2d 100, 103 [3] [172 P.2d 377];

Broderick

v.

Sutherland,

94 Cal.App.2d 694, 696 [3] [211 P.2d 364].