BISHOP, J. pro tern. I dissent. I take my stand with the jury in this case, even though it means that, measured by the majority opinion, mine is not a reasonable mind; that I am not any more able than were the jurors to distinguish between fact and fancy.
The legal principles that govern are neither complicated nor in dispute. The order for the entry of a judgment notwithstanding the verdict should not have been granted unless there was “no evidence of sufficient substantiality to support a verdict in favor of the plaintiff” (Estate of Leahy, (1936) 5 Cal.2d 301, 303 [54 P.2d 704, 705], repeating a portion of a quotation in Estate of Lances, (1932) 216 Cal. 397, 400 [14 P.2d 768], respecting the like rule as to a directed verdict). I differ from my learned associates in that I find in the evidence substantial support for the jury’s negative answer to this question, which was given them: “Was the alleged will, Exhibit A, on February 5th, 1939, declared by Abner H. Stone to be his will to Joseph Loeb and Celia LeVee and thereupon subscribed by him and upon his request these witnesses each signed as a witness in his presence and in the presence of each other?”
The evidence to support the jury’s answer need not be direct; circumstantial evidence suffices, if it meets the test of “reasonable minds.” A single thread may be weak, but a number of threads twisted together may support a heavy burden. So it may be with circumstances. “Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact for the jury.” (Blank v. Coffin, (1942) 20 Cal.2d 457, 461 [126 P.2d 868, 870].)
Jurors are not compelled to accept or reject all of a witness’ testimony; they may accept those portions which appeal to them while rejecting those that they do not believe. (People v. Smith, (1940) 15 Cal.2d 640, 648 [104 P.2d 510].) The jurors in this case may very well have believed that Abner Stone did, on the date which was an element of the [274]question put to them, typewrite an original and a carbon of that which he thought would become his will. He was accustomed, evidence revealed, to draw his own legal papers, and Exhibits A and B, the original and carbon copies of his “will,” were each drawn on a letterhead of the Cosmopolitan Hotel of Denver, and bear internal evidence of draftsmanship by a layman. He typewrote a line upon which to place his signature, but made no provision for the signature of witnesses. This, of itself, is not of great significance, but it is one of the circumstances which the jury doubtless weighed with other facts.
The copy that was found in Abner’s safe deposit box was placed there by Abner, the jury could have determined. Of this there was no direct evidence, but it did not get there by itself and Jerome testified that he did not know of its presence there, so Abner must have placed it there on February 7, the last time he opened his box. Had the carbon copy, through some slip, been witnessed, when the original copy was not, persons not learned in law but versed in the usual propensities of men would expect Abner to seek sanctuary for the carbon copy, not for the unwitnessed original. But it was the original copy, not the “witnessed” carbon copy that he placed in safety. Nor would it seem natural that Abner, had he a witnessed copy of his will, would insert it in an envelope, marked “Instructions to Jerome Stone,” give it to Jerome without revealing its contents but with directions not to open it until someone, who did not know of its existence, told him to.
The jury had Jerome before them on the witness stand. They knew he had been present when Abner prepared the original and carbon copy, Exhibits A and B. If it were true that witnesses had been called in and went through the ceremony of witnessing Abner’s will, Jerome knew it. Jerome knew that after the will was witnessed, if it was witnessed, that Abner put both copies in his pocket, then took one out, sealed it in an envelope and had it placed in the drawer of their common bureau. Was it the witnessed will that was in the drawer, or was that still in Abner’s pocket? Jerome must have wondered about this, if one will was witnessed and one was not, but did not know the answer until the next big scene, the opening of the box.
Jerome was present in the group when the original copy [275]was taken out of the box, he remembered that, and he remembered that it was read aloud, but he did not remember, so he testified, that anyone said anything about it having no witnesses. In view of testimony that the three events did take place, that is, the taking of the unwitnessed original copy out of the box, the making of the comment that “Here is a document that seems to be a will but has not witnesses on it. Do you think it ought to be read f ’ ’ and the reading of the will, and that they followed each other in immediate succession, the jurors were certainly acting within the realm of reason when they concluded it to be a fact that Jerome did hear the comment. Then, after it was read, the one sheet of paper was passed around, from one to another, of those present, and Jerome could see that it was not the will that had been witnessed by his mother and future brother-in-law on February 5.
Is it to be held so surely true, that it can be declared as a matter of law, that the jury could not interpret Jerome’s silence, at this moment, as eloqirent as a statement on his part that he knew nothing, of any will of Abner’s having been witnessed? Was the jury unreasoning in concluding that one who had passed through the experience of The Witnessing of the Will, and who had wondered what had become of it, and who attends the ceremony of Opening the Deposit Box, only to find a will without witnesses, resulting in a query as to whether it ought to be read, would naturally, involuntarily, declare, in the family circle gathered there: “This isn’t the only will, there is one mama witnessed.” Jerome’s failure to do the thing that your neighbors would expect him to do, if he knew of a will that had been witnessed, warranted the jury in concluding that he knew of no witnessed will, and consequently that the ceremony of February 5 had not taken place. The right of the jurors, charged with the duty of determining the facts at issue before them, to so conclude, is not to be destroyed by pointing out other reasons to which they might have ascribed Jerome’s silence. The statement in the case of Estate of Wallace, (1923) 64 Cal.App. 107, 110 [220 P. 682], that “An inference cannot be said to be established by circumstantial evidence, either in a civil or criminal case, unless the circumstances relied upon are of such a nature and so related to each other that it is the only inference which can be fairly or reasonably drawn from [276]them. If other inferences may reasonably be drawn from the facts in evidence, the evidence does not support the inference sought to be deduced, ’ ’ quoted by respondent, was disapproved by the Supreme Court as it denied a hearing of the case, a fact pointed out in Robertson v. Weingart, (1928) 91 Cal.App. 715, 723 [267 P. 741], in Strode v. Pidewide Stages System, (1930) 107 Cal.App. 298, 301 [290 P. 482], and in Lejeune v. General Petroleum Corp., (1932) 128 Cal. App. 404, 416 [18 P.2d 429]. The correct rule is that stated in Medico-Dental etc. Co. v. Horton & Converse, (1942) 21 Cal.2d 411, 436 [132 P.2d 457, 471] : “Where different inferences might fairly and reasonably be deduced from the evidence* the choice made by the trial court, in the absence of an abuse of discretion, is binding on the appeal. ’ ’ See, also, Mitchell Camera Corp. v. Fox Film Corp., (1937) 8 Cal.2d 192, 197 [64 P.2d 946].
The evidence of the events during the noon hour, following Jerome’s disclosure to Widoff that he had an envelope not to be opened until Widoff told him to, fails to prove that the will was witnessed during that period but its failure in this regard does not rob it of its value. The contestant had the heavy burden of proving a negative, that the will was not witnessed on February 5. It was an aid to the contestant in discharging her burden not only to prove facts from which it could be inferred that the will had not been witnessed February 5, but also to prove that it might have been witnessed at a later day. The possibility that it was witnessed that later day is not proof that it was, but it was an aid to the jury in coming to their conclusion, because it proved that the earlier date was not the only possible one.
The trial court should not have substituted his view of the facts for that of the jury; the judgment notwithstanding the verdict should not have been rendered.
A petition for a rehearing was denied July 14, 1943. Bishop, J. pro tern., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied August 16, 1943. Curtis, J., and Traynor, J., voted for a hearing.