Marcus v. Redmond

CRAIL, P. J.

This is an appeal from an order of the probate court admitting to probate the will of Mary Marcus, deceased. In the action the appellant, Louis Marcus, was the contestant or plaintiff, and the executor named in the will and others were the proponents or defendants.

With considerable skill and much to our convenience the contestant has set forth in his statement of questions involved the points upon which he relies, as follows: “1. Was it shown that the testatrix was sufficiently competent to execute the alleged codicil? 2. Was the execution of the Codicil sufficiently proved ? 3. Did the Court abuse its discretion in denying the motion for a new trial? 4. Can a Commissioner of the Probate Court in Los Angeles County qualify to sit as a Judge Pro Tem? 5. Was it an error to amend the decree and to award costs against the contestant?”

Obviously the answers to the first two questions depend upon whether there is any substantial evidence to sustain the findings of the trial court with regard thereto, and in determining them we must view the evidence in the light

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most favorable to the party who was successful in the trial court. The contestant, however, contends that the following language which he quotes from the

Estate of Arnold,

147 Cal. 583 [82 Pac. 252], expresses the true rule to be used: “In determining whether or not in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury the same rules apply as in civil cases. Every favorable inference fairly deducible and every presumption fairly arising from the evidence produced must be considered as facts proved in favor of the contestants. Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants. All the evidence in favor of the contestants must be taken as true, and if contradictory evidence has been given it must be disregarded.”

Contestant admits that this quotation speaks of the amount of testimony required to take a case to the jury, but contends that “the analogy should be allowed in a case where the only testimony concerning mental capacity comes from the proponents on cross-examination or otherwise; and realizing that the witnesses are adverse, all the favorable presumptions should be given it”. It is sufficient to say that there is no merit in the contention. The rules for viewing evidence set forth in the Arnold case,