Fitzgibbon v. McDonnell

STURTEVANT, J.

James McDonnell died in San Francisco on December 5, 1927. He was a resident of San Francisco and left estate there. He left him surviving as his only heirs two sisters, Ellen McDonnell and Mrs. Nora Fitzgibbon, and seven nieces and nephews, children of a deceased brother. The decedent left a will in which he named James McDonnell, one of his nephews, as executor. The nephew offered the will for probate and Mrs. Fitzgibbon, one of the sisters, filed a contest. The contest was answered and a trial was had in the trial court before the court sitting with a jury. At the end of the contestant’s case the proponent of the will made a motion for nonsuit. The motion was granted and from a judgment entered thereon the contestant has appealed. In her contest she set forth two counts. In one count she pleaded that the testator was of unsound mind, and in the other count she pleaded that the testator was acting under undue influence. A hearing was had on both counts,and we will discuss the case as made out as to each count in the order stated.

As the heirs of decedent were collateral it may not be said that the will was unnatural. (26 Cal. Jur. 697.) There was evidence that at the time the will was made the decedent was seventy-two years of age; that at times he had been sick and had suffered from bladder trouble, dropsical conditions, dizzy spells and other ailments, but at the time the will was made and before and after that date he was able to be out and was not confined to the house. There was evidence that he was stingy, ill tempered, dictatorial and repulsive in personal habits. He entertained perverse opinions and unreasonable prejudices. He was peculiar in his dress and manners. He did not associate intimately with his kith or kin or others. There was some evi

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dence that he had a poor memory. He was solitary in his habit of living. He was not a pleasant person mentally or physically. When he was a young man he injured his head. The contestant testified that continuously after that he was “insane”. She did not further explain. However, the record discloses that after that accident the decedent came to America, engaged in business, acquired the estate disposed of by the will, invested his moneys in the stock of the First National Bank of San Francisco, or deposited it in savings banks, or loaned it on notes secured by mortgage on real estate. The foregoing facts do not, whether we take them separately or collectively, show that at the time of making his will the decedent did not have sufficient mental capacity to enable him to understand the nature of the act he was doing and to understand and recollect the nature and situation of his property and to remember and understand his relations to, the persons who had claims upon his bounty and whose interests were affected by the provisions of that instrument. He had capacity to make a will