Estate of Hilker

SHINN, Acting P. J.

Minnie D. Hilker, widow of William Hilker, deceased, appeals from a judgment of nonsuit in a

[681]

contest initiated by her for revocation of the probate of her husband’s will. She charged undue influence of Roy E. Hilker in the making of the will, and alleged upon information and belief that the will was not subscribed by decedent or by anyone with his authorization. The latter ground of contest was abandoned by petitioner at -the trial. Roy E. Hilker and Helen Hilker, his wife, answered the petition and a trial upon the sole issue of undue influence resulted in the judgment of nonsuit. The question on appeal is whether the evidence of the contestant given only the construction, application and effect most favorable to her would have been sufficient to support a finding that Roy E. Hilker exercised undue influence upon decedent in the making of the will. We shall proceed to a résumé of the evidence.

William Hilker was 81 years of age at the time of his death on December 8,1945. When he married appellant in 1935, he was a widower and childless. He died without issue, leaving surviving him, in addition to appellant, Walter L. Hilker and Roy E. Hilker, sons, and Leona H. Hadsell, daughter, of a deceased brother, and Frank Fetter and Alma Wissinger, children of a deceased sister. He was possessed of an estate which was appraised at approximately $75,000. The bequests of the will were $1,000 to appellant, $500 to Frank W. Dillon, son of appellant, $500 to the wife of Frank Dillon, and $500 to Helen Hilker, described in the will as a niece of decedent. The remainder of the estate was left to Roy E. Hilker and in case of his predeceasing the testator, to Helen Hilker. Roy E. Hilker was appointed executor, and Helen Hilker was appointed executrix in the event her husband should predecease the testator, bond in each case being waived.

Appellant’s evidence consisted solely of the testimony of Roy E. Hilker, which was in substance as follows: He, Roy, is 59 years of age; he visited in California with his family some time in the fall of 1904; he came to California shortly thereafter to stay, and for about a year lived with his uncle, William; he was employed by his uncle for about six years and until his uncle obtained employment for him in San Diego, and he worked off and on for his uncle until he went into business for himself; there was a very close relationship between the two, and William treated Roy as he would a son; he never was in business with his uncle but there had been some business dealings between them; in 1928 or 1929, at the time Roy was married, he borrowed $2,500 from William upon his