Estate of Lefranc

BRAY, J.

In a contest of a will upon the ground of testatrix’ unsoundness of mind, the jury found her to be of sound mind when she executed her will. Contestant appealed from the judgment entered thereon, and attempted to appeal from the order denying a new trial, which is not appealable. (Code Civ. Proc., § 963; Prob. Code, § 1240.)

Questions Presented

1. Alleged error of court in denying continuance. 2. Alleged errors in admission and exclusion of evidence.

Facts

No question is raised as to the sufficiency of thg evidence to support the verdict. Contestant, a niece of decedent, states in her opening brief (p. 2) : “There was a conflict in the evidence to the extent that a verdict either way finds support in the evidence. ’ ’ In view of that fact, and the fact, as will hereafter be shown, that we find no error as charged, it is not necessary to discuss the evidence. (It might be added, parenthetically, that respondents contend that there is no evidence which would have supported a verdict other than the one rendered.)

1.

Denial of Continuance.

At the end of respondents’ case and at the opening of the afternoon session, contestant moved for a continuance until the next morning for the “purpose of locating and producing a material witness, to-wit: Kathryn F. C. McGuire. I expect the witness to testify as a rebuttal witness, as to facts occurring between September ’39, to February 1940, particularly in January of 1940, and I expect her to testify as to her opin

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ion as to the soundness of mind of Marie Lefrane upon January 20th, 1940. The motion is based on those grounds, and on the further ground that contestant has used reasonable diligence in the effort to locate and produce said witness. ’ ’ Objection was made on the ground that it was not rebuttal testimony, but testimony in chief, and that it would require the recalling of witnesses who had already testified; on the further ground that the statement of contestant’s counsel showed that he knew of this witness before he rested his main case; that no subpoena was out for her, and that there was no assurance that the witness would be produced the next day. The court denied the motion. Under the showing here the court did not err in denying the continuance. No affidavit in support of the motion for continuance was offered, the case had been pending over six years, the contestant had previously rested her ease, the presentation of evidence by respondents was practically completed, and in his request for the continuance counsel did not set forth what the witness McGuire would have testified, other than his rather indefinite statement, “I expect her to testify as to her opinion as to the soundness of mind” of testatrix upon the date of the will’s execution. He did not say whether her opinion was that the testatrix was of sound or unsound mind. In an affidavit filed on motion for new trial, it appears that it was not until noon of the day to which contestant wanted the case continued that the whereabouts of Miss McGuire was learned. She was then in Stockton. The affidavit does not state when, if at all, she could have been produced at the trial.