In Re Estate of Casassa

STURTEVANT, J.

Anna Casassa died testate at San Francisco on the fourteenth day of December, 1925. Her will was admitted to probate and later one of her sons, Frank A., filed a petition asking that the probate be revoked. Pie named his brothers, Armand and Louis and his sister Louise as defendants and they appeared and filed answers. A trial was had in the lower court before the court sitting with a jury. After the contestant had put in his case the proponents made a motion for a nonsuit. The motion was granted and the contestant has appealed.

As something is said in the briefs concerning unnatural wills it should be noted at this time that the decedent by her will transferred all her property to her children. The contestant was given $2,000, another son was given $5,000, still another son was given $1,000, and the remaining portion was divided into four parts, one-fourth given to each of the four remaining children. Not a dollar was given to any person, natural or artificial, outside of the members of the family. The contestant concedes that the brother who received only $1,000 had been generously remembered in the will of the father, who died only two years before. The son who received $5,000 makes no complaint. The ease stands thus: A son who received $2,000, whereas other brothers and sisters each received $7,500, presents the claim of “an unnatural will.” We think the expression has no application to the facts. To say that a testator may not give to one legatee selected from a certain class more than he gives to another legatee selected from the same class is, in legal effect, to say that a testator has no.right to make a will.

(Estate of Shay,

196 Cal. 355 [237 Pac. 1079].)

The plaintiff pleaded his case in five separate counts: (1) Nonexecution of the will; (2) decedent was of unsound mind; (3) the will was the product of undue influence; (4) and (5) in framing her will the decedent was acting under artifices of fraud practiced upon her. The first count was dismissed by the plaintiff. As to the fourth and fifth counts, there was not a particle of evidence introduced. It

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remains for us to consider the ruling as applicable to the second and third counts.