Gilham v. Chittenden

STURTEVANT, J.

This is a contest over the application of the defendant Jessie Chittenden to have admitted to probate the purported will of Nellie F. Gilham, deceased. The contest was filed by Kelsey M. Gilham, the son of the deceased. The defendant Jessie Chittenden answered the contest and a trial was had before the court sitting with a jury. At the end of the hearing the trial court submitted to the jury forms of several special verdicts, among others: “Question 1. Did Nellie F. Gilham subscribe her name at

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the end of the instrument (contestant’s exhibit 1) dated October 28, 1929? Answer. -. (Note. If question 1 above is answered ‘No’ then the jury need not find as to any other question.) ” The jury answered “No” and a judgment in favor of the contestant was entered on the verdict. Later the defendants moved for a new trial, basing their motion on all of the statutory grounds. The motion was denied and the defendants have appealed and have brought up a bill of exceptions.

The defendants contend that the verdict is not supported by the evidence. They assert that the contestant introduced no evidence excepting the testimony of Mr. Chauncey McGovern, an expert witness, whereas the defendants introduced the testimony of the petitioner, Mrs. Jessie Chittenden, Mr. E. L. Geiger and his wife. Continuing, they assert that their witnesses were not in any way contradicted and therefore the verdict should be set aside.

The uncontradicted evidence is that on October 28, 1929, Mrs. Chittenden wrote the purported will. All disputes involve what happened thereafter. Mrs. Chittenden testified that about ten days later the decedent and Mr. and Mrs. Geiger were at the home of Mrs. Chittenden at Burlingame, in San Mateo County. As to what happened there on the morning of that date, she testified as follows: “Mr. Geiger remained a few minutes and then said he would have to go on to work; this was around 10 o’clock in the morning; Nellie F. Gilham then said, ‘Wait a moment I want you to do something for me before you go.’ She then asked me to get the papers, ‘that it was as good a time as any to sign them’. I did so, and she said to Mr. and Mrs. E. L. Geiger, ‘I have made a little will and I want you to sign .as witnesses. ’ Mr. Geiger then said, ‘I would like to read this Aunt Nell before signing my life away.’ She said ‘All right.’ I then said, ‘Read it aloud, Mr. Geiger.’ Mr. Geiger then read contestant’s exhibit 1 aloud in full. When he had completed the reading he said, ‘It does look like a will all right,’ and Nellie P. Gilham said, ‘Yes, it is my will, ’ and she signed her name to it. I then signed my name to the will and Mrs. Geiger signed and then Mr. Geiger signed his name to the will, contestant’s exhibit 1. Mr. Geiger then bade us goodbye and left the house.” Regarding the same incident Mr. Geiger testified: “I stayed a few