Estate of Moore

STURTEVANT, J.

This is an appeal by the contestants in a contest of a will where the proceeding was commenced after the will had been admitted to probate. George A. Moore was married twice. By his first wife he had several children—George J., Herbert B., Harry T., Mary F., and Jane W. By his second wife, Mary Ellen, he had no children.

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George A. Moore died testate in the year 1916, and by the terms of his will he left his property to his second wife, Mary Ellen. After due proceedings had, she received $16,000, which the record shows was community property. His widow, Mary Ellen, continued to live on until the fourteenth day of August, 1920, when she died testate, leaving her surviving at least one sister, and one nephew residing in Humboldt County. After her death her will was admitted to probate, and the proponent and respondent, Harry W. Lobb, was, on September 2, 1920, appointed, in accordance with the provisions of her will, sole executor thereof. Thereafter this proceeding was commenced, and on March 13, 1922, the second amended petition was filed. Later the respondents interposed a demurrer, the demurrer was overruled, he filed an answer and a trial was had. The trial of the issue, interest in the estate, was had by the trial court sitting without a jury. When that issue was on trial, both parties having submitted their evidence, the trial court decided the issue against the contestants, discharged the jury, and dismissed the proceeding.

The contestants are either the children of the husband of the decedent or the children of a deceased child of the husband. By their contest they claim that their stepmother, Mary Ellen Moore, inserted a residuary clause in her will which was invalid by reason of the undue influence practiced on" the decedent by the respondent Harry W. Lobb; that under the alleged invalid clause upward of $80,000 was therefore left undisposed of by will, and that said sum remains to be administered upon as though the decedent had died intestate. In this connection the contestants claim that the decedent had received . from her husband’s estate $16,000, and that the whole thereof was community property, and that she retained the whole of said sum intact until the date of her death, and that the said sum was included in and covered by the $80,000, which was so left undisposed of by will, and to which the contestants were entitled to assert their claim. All of these facts the contestants conceded in the trial court and now concede that they were bound to prove as showing their interest in the estate. (Civ. Code, sec. 1386, subd. 8.) But, so conceding the burden resting on them., they claim that they made the proof in the trial court, and that the