Estate of Leahy

CONREY, J.

Ella A. Leahy, an unmarried woman of the age of about 62 years, died on the first day of August, 1932, in San Mateo County where at that time she resided in the home of her sister, Mary L. Cornyn. With Mary L. Cornyn also lived her son, Harry L. Cornyn. On June 24, 1932, Miss Leahy executed a will by the terms of which she gave $500 to her sister Anna Dixon and, after making other small specific bequests, gave the rest of her estate to Mary Cornyn, naming Harry Cornyn as sole executor without bonds. This will having been duly admitted to probate, Anna Dixon thereafter filed her petition contesting its probate on several grounds, all of which except that of undue influence were abandoned during the trial. At the conclusion of the evidence, respondents moved for a directed verdict, which motion was denied, and the jury returned a verdict in favor of the contestant. Respondents then moved for judgment notwithstanding the verdict, which motion was granted, and judgment entered accordingly. This is an appeal by the contestant from that judgment.

By section 629 of the Code of Civil Procedure it is provided that when a motion for a directed verdict, which

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should have been granted, has been denied and a verdict rendered against the moving party, the court, at any time before the entry of judgment, either of its own motion, or on motion of the aggrieved party, may render judgment in favor of the aggrieved party notwithstanding the verdict.

It may plainly be inferred that the rules governing a directed verdict are those which govern the making of an order or judgment notwithstanding the verdict. It is established law that a directed verdict may be granted “only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given”.

(Estate of Lances,

216 Cal. 397, 400 [14 Pac. (2d) 768].) We must, therefore, examine the evidence for the purpose of determining the right of the trial court to grant the motion for judgment in this case.