Estate of Kirk

PEEK, J.

This is an appeal by proponents Adeline Kirk, L. P. Gebhardt, Jess Leach and Vesta Leach of the will of Frederick Kirk, deceased, from a judgment entered denying probate thereof. The judgment was entered pursuant to a special verdict of the jury finding that Frederick was induced to sign the proposed will by means of the undue influence of Phil Gebhardt, and that Frederick, at the time of said execution, was not of sound and disposing mind. The proponents contend that the findings of undue influence and mental incompetency are not supported by the evidence. Necessarily, therefore, if the conclusion of the jury can be supported on either ground, the judgment must be sustained. Since it ap

[146]

pears that the evidence upon the question of competency amply supports the judgment, we shall limit this opinion solely to that issue.

' The testator executed the contested will on August 3, 1950. He died on April 15, 1956, at the age of 78 years, survived by two sons—Charles Ellsworth Kirk and Oscar Kirk, the contestants.

At the time the will was executed, as at the time of his death, the decedent was the owner of real property in Amador County consisting of the Mount Echo Ranch containing about 316 acres: the Lane Place, about 133 acres; the Glascock Place, about 45 acres; the Ruggles Ranch, about 480 acres; and a home place in lone, about one-half block.

By the contested will of August 3, 1950, he gave the Lane Place to his sister-in-law, Adeline Kirk; the Mount Echo Ranch and the home place in lone to Adeline Kirk and Ms brother, Charles H. Kirk, who died in 1952; the Glascock Place to the children of his son Ellsworth—Dulcy and Rodney —and their mother, Betty; $500 to Phil Gebhardt; $100 each to Jess Leach and Ms wife, Vesta; and the residue to those specifically remembered in the will. Adeline Kirk was named the executrix.

Paragraph IX of the will provided in part as follows: “I have two sons now living, Ellsworth Kirk and Oscar Kirk. I specifically and with premeditation leave each of them nothing. My son, Ellsworth, for a long number of years has failed to give to me any filial or other respect, attention, love or affection and it has been necessary for me, through my friends, to have had my son Ellsworth removed as my Guardian because of his lack of attention to me either as Guardian or son. My son, Oscar, treats me as a stranger and has never at any time displayed toward me any affection or respect.”