Estate of Mullen

ROSS, J.,

pro

tem.

On September 28, 1932, Edward Mullen, the decedent, signed a will drawn by an attorney of his own choice, with the attorney and the cashier of the bank with which he did business as subscribing witnesses, by which respondent, a neighborhood friend, was sole beneficiary. The decedent was 76 years of age and had no known relatives. He died November 18, 1932, and, after proper proceedings, this will was admitted to probate on December 9, 1932. On December 18, 1932, appellant, another neighborhood friend of decedent, filed a will dated November 7, 1932, asking that it be admitted to probate, and that the admission of the will of September 28, 1932, 'be revoked. By the purported later will appellant was sole beneficiary. This will was admittedly written with pen and ink by appellant’s wife, and at his home. Two neighbors of appellant and decedent were subscribing witnesses. Respondent contested this will on grounds of lack of execution, undue influence, and lack of testamentary capacity of decedent on the date of its purported execution. After trial before the court without a jury judgment was given in favor of contestant, and the will was refused admission to probate on the grounds of undue influence on the part of appellant and unsoundness of mind of the decedent on November 7, 1932. From this judgment this appeal is taken.

Appellant’s grounds of appeal are stated substantially as follows: “May the court disregard the positive, uneontradicted and unimpeached testimony of the subscribing witnesses, the other witnesses present when the will was executed, and other witnesses who testified to facts showing that deceased was mentally competent, and that he made the will freely and voluntarily and without any undue influence?”

An examination of the voluminous transcript, however, shows that the testimony referred to, although positive, perhaps, is certainly not entirely uncontradicted and unimpeached. Appellant and his wife testified positively that the

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will was written on the same day, and with the same pen. Milton Carlson, handwriting expert, contradicted this, which could be considered very material impeachment of all the testimony of appellant and his wife.