Brown v. Nelson

THOMPSON (IRA F.), J.

This is an appeal from a judgment in a will contest declaring the purported last will and testament of Anna M. Ivey, deceased, to be void. The contest was based upon the grounds of undue influence and the unsound mind of the testatrix. The jury found that Anna M. Ivey was not mentally competent to execute a will on October 10, 1925, and also that the execution thereof on that date was obtained through the undue influence of one or more of the following: Maude A. Nelson, her husband, Elan A. Nelson, and Birdinia J. Wilson.

The principal contention relied upon for a reversal of the judgment is that the evidence is insufficient to support the findings of the jury. Heretofore an appeal was

3, See 26 Pal. Jur, 638; 28 R. P. L. 97 (8 Penn. Supp., p. 6087).

[563]

taken, by contestants from a judgment of nonsuit. In the decision of that ease,

Estate of Ivey,

94 Cal. App. 576 [271 Pac. 559], the court reviewed the testimony adduced and concluded that there was substantial evidence of the unsoundness of mind of the testatrix. The evidence produced in the second trial by the contestants and apparently from the same witnesses differs in a few respects from that set forth in the opinion. But the variances are insubstantial and immaterial. No useful purpose can be served by again setting forth the testimony which supports the finding of the jury that the testatrix was of unsound mind. And regardless of how we might view the evidence as a whole, if we were charged with the duty of finding facts, our duty is to sustain the verdict of the jury if there is any substantial evidence to support it. Nor is it essential for us to set forth the testimony relating to undue influence. The result would be the same though the evidence as to the latter finding should be otherwise insufficient.

It is also urged that the court commented on the evidence or rather the credibility of one of the witnesses before the jury. What happened is as follows: One of the subscribing witnesses was called to the stand and testified as to what was said and done at the time the will was executed. She was then asked whether Mrs. Ivey in her opinion "appeared to be a woman of sound mind". An objection was lodged by counsel for contestants on the ground that she was not qualified to express an opinion. The judge’s attention was called to the fact that she was an attesting witness, whereupon the following statements were made: