Estate of Sandman

[11]

THE COURT.

On November 15, 1928, the will of Solomon Sandman, deceased, was admitted to probate in the Superior Court in and for the City and County of San Francisco, and letters testamentary thereon issued to I. Levy. The will in question was dated July 18, 1928, and the testator died on October 23, 1928. By its terms there was bequeathed to Henrietta Marks, the daughter of the deceased, the sum of #10; to Mary Nicholson the sum of #500, the residue of the estate being bequeathed to Philip Sandman, a brother of deceased. It also contained a clause revoking a , previous will, which was dated November 3, 1926.

On April 8, 1929, Henrietta Marks filed her petition for the' revocation of the probate of the will, alleging that the deceased, due to unsoundness of mind at the time of its’ making, was without testamentary capacity, and for the same reason was incompetent to publish the same at any time between its date and the date of his death. Issue was joined and a trial was had by jury, which returned a verdict. for the contestant, by which it was found that the deceased was not of sound and disposing mind and memory. Thereupon judgment was entered revoking the probate of the will. The said Philip Sandman has appealed from the judgment, and claims that the verdict is unsupported.

The evidence shows that the deceased was born in Prussia and came to the United States at the age of twelve years. Philip Sandman, who came to this country later, was. younger than the deceased, and after the latter left Prussia the two never met. The deceased at the time of his death was eighty years of age. His wife died in 1917, and contestant was their only child. According to the latter’s testimony the deceased shortly after the death of his wife became subject to a delusion that he and his wife were in communication ; that she visited and advised him and that he could see her moving through the air; that in 1924 after the birth of contestant’s first child deceased stated that it was the wish of his deceased wife that the child be given the latter’s name, and he became angry when this was not done. The witness further testified that with this exception her relations with her father were always harmonious; further, that after his wife’s burial deceased caused her body to be twice moved to new graves, claiming that she was dissatisfied with