In Re Estate of Mickley

THOMPSON (IRA F.), J.

This is an appeal from an order granting a motion for a new trial in a will contest where the jury found in favor of the proponent on the issue of incompetency. The order does not indicate that it was granted on account of the insufficiency of the testimony, and therefore under the provisions of section 657 of the Code of Civil Procedure we must indulge the presumption that the order was not based upon that ground.

The respondents direct our attention to two instructions given by the trial judge which they say were erroneously given and which justify the order appealed from. They read as follows:

“You are instructed that under the laws of this state a testator leaving legal heirs may not leave more than one-third of his estate to any charitable or benevolent society or corporation, and if he attempts to do so, all over the one-third shall go to the residuary legatees, next of kin, or heirs, according to law.”

“You are instructed that every person is presumed to know the law and if you find from the evidence that the testator was of sound and disposing mind at the time he made the will or the codicil thereto, you must find that he knew that under the terms of his will as modified by the codicil thereto the Philadelphia Home for Incurables would take but one-third of his estate at the death of his wife, and that his brother, or his heirs would take one-third, and that his niece or her heirs would take one-third, unless by the preponderance of the evidence introduced in the case you are satisfied in your mind that the contrary was true.”

There were two instruments, the one dated November 7, 1928, and being the will of decedent, and the other a codicil thereto executed November 13, 1928. They had been admitted to probate prior to the contest. By their provisions

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the deceased left his entire estate, with the exception of $5,000 given to contestant Miriam Mickley by the codicil, to the Fidelity-Philadelphia Trust Company, in trust for the purposes of paying the income therefrom to his widow, Wylma Mickley, for the term of her life, and upon her death the principal, together with accruing rents and profits to be paid over to the Philadelphia Home for Incurables. The codicil, in addition