Estate of Roberson

[268]

THE COURT.

This is a contest of a will before probate. The respondents filed a contest to a will dated July 18, 1949. A jury found that the deceased was of unsound mind at the time the will was executed. A judgment denying admission of the will to probate was filed on January 12, 1951, and entered on the same day. The proponents moved for a judgment notwithstanding the verdict and for a new trial, which motions were denied on March 12, 1951.

On March 26, 1951, the proponents filed a notice that they “hereby appeal” from the denial of their motion for a non-suit, from the denial of their motion for a directed verdict, from the denial of their motion for a judgment notwithstanding the verdict, from the denial of their motion for a new trial, and from “the verdict of the jury favoring contestants and from the whole thereof.” On the same day, they filed with the clerk a notice and request “for a reporter and clerk’s transcript.” This notice first recites that the proponents “have heretofore filed notice of appeal from the judgment in said action” and then requests that a reporter’s and clerk’s transcript be made up and prepared, including all testimony and evidence offered or received, all rulings made, and all objections or exceptions of counsel. It then gives “further notice” that proponents desire to have included in the record on appeal all exhibits, the petition for letters, the petition to revoke will before probate, the answer to that petition, the motion for judgment notwithstanding the verdict, the motion for new trial, and the “findings of fact and conclusions of law. ’ ’

The appellants’ sole contention is that there is a lack of substantial evidence to support the jury’s verdict finding that the deceased was of unsound mind at the time the will in question was executed. The matter of the judgment was not mentioned in the opening brief. The respondents first contend that no appeal was taken from the judgment, or from any of the appealable orders mentioned in section 1240 of the Probate Code, and that it follows that this court is without jurisdiction to decide the question presented by .appellants. While a motion to dismiss this appeal was earlier denied, we think this contention should be sustained.

The matters mentioned in the notice of appeal are not appealable; an order denying a motion for a new trial