Holland v. Kelly

[577]

CASHIN, J.

An action by Patrick Holland, appellant herein, to set aside an instrument, in form a deed of gift to certain real property situated in the city and county of San Francisco, purporting to have been executed on April 18, 1911, by Mary Anne Holland, then the wife of appellant, to Julia McCarthy, her maternal aunt. The latter, who was the original defendant in the action, has since died and William A. Kelly, as executor of her last will and testament, was substituted as defendant and respondent herein.

Appellant’s wife at the time of her death, which occurred on May 7, 1911, was the owner of separate property which, not including the land involved in this action (the latter being also her separate property) was valued at more than one hundred thousand dollars, and to which, she having died intestate, appellant and a sister of deceased have become the sole heirs. The complaint alleged that the instrument in question was not in fact signed, acknowledged, or delivered by Mary Anne Holland; that she had been for a period prior to and including the date of the instrument addicted to the excessive use of intoxicating liquors; that due to such use her mind had become enfeebled to such an extent as to render her incompetent; that if such instrument had in fact been executed it was due to the acts and importunities of Julia McCarthy, who, aware of such enfeebled mental condition, contributed thereto by supplying and administering intoxicants to her niece that she might and did thereby and by undue influence induce the execution thereof. The allegations mentioned being denied, upon the trial of the issues the court found against appellant, and entered its judgment accordingly. From the judgment the appeal was taken.

Appellant contends that the findings and judgment are not supported by the evidence; that the court erred in sustaining an objection to the introduction in evidence of certain tags or slips purporting to record deliveries by a certain liquor dealer to Mary A. Holland of certain liquors and which tags were obtained by appellant from the dealer after the death of his wife.

Appellant with numerous witnesses, who had been neighbors and friends of himself and wife, testified to the use

[578]