Estate of Harvey

ASHBURN, J.

Appeal by decedent’s widow from judgment and order admitting to probate his will of July 24, 1950, denying her petition for letters of administration, dismissing her contest and appointing as executors testator’s brother, Jesse E. Harvey (Jesse, Sr.) and his nephew, Jesse M. Harvey (Jesse, Jr.).

Though numerous grounds of contest were alleged, no evidence of substantiality was introduced in support of any of them except the claim that the will was not executed by testator, not actually signed by him. The case was tried without a jury and the trial court found that the will was duly executed by the testator on the date it bears. Appellant’s counsel initially assert in their opening brief that the evidence conclusively establishes the contrary, but before the argument has proceeded far it degenerates into one of the

[370]

incidence of the preponderance of the evidence. Under the impact of respondents’ arguments the reply brief claims no more than a preponderance in favor of contestant.

The appellate courts are required to reiterate from day to day, and with unremitting monotony, these fundamental principles of review: That the appellate court cannot weigh the evidence to determine where the preponderance lies; that its duty begins and ends with a determination of whether there is any substantial evidence, contradicted or uncontradicted, which supports the finding of fact; and that when two or more inferences reasonably can be deduced from the evidence the reviewing court cannot substitute its own inferences for those of the trial court. (See

Primm

v.

Primm,

46 Cal.2d 690, 693-694 [299 P.2d 231].) The evidence thus construed presents the following situation.

The will, executed on July 24,1950, left the family home and furnishings to the wife, provided for a family allowance for her during probate, and placed the remainder of the estate in a trust which endures for 10 years from testator’s death or until one of 'his two daughters becomes 25 years old. This latter event will occur about six years after testator’s death, which was on December 13, 1954. Income from the trust goes one-fourth to the wife, one-fourth to each of testator’s two daughters, and one-fourth to his sister, Ruby Foulks. In the event of the death of any beneficiary her share goes to the survivors. " Principal is to be distributed upon termination of the trust in the same manner as the income, namely, one-fourth to the wife and tó each of the other beneficiaries. The will also includes a distress clause in favor of the wife. The executors are Jesse, Sr. and Jesse, Jr., neither of whom takes anything under the will except reasonable compensation for his services.