Doolittle v. Davenport

[30]

McFARLAND, J.

This appeal arises out of a contest over the probate of the alleged will of Lutellus Doolittle, deceased. The proponent is L. D. Davenport, who is the main beneficiary in the will and named therein as executor. The contestants are a brother and sister of the deceased. The case was tried without a jury, and the court found that at the time of the making of the alleged will the deceased was of unsound mind and incapable, from such unsoundness of mind, of making a will, and that the alleged will is not his will; and judgment was entered denying the probate.

The proponent made a motion for a new trial, which was denied, and from the order denying the motion he appeals.

Appellant makes two points for a reversal, 1. That the evidence was not sufficient to justify the finding that the deceased was not of sound mind, and, 2. That a new trial should be granted on account of newly discovered evidence.

1. This court has a number of times set aside verdicts upsetting wills in cases where there was ample proof of the validity of the will in question, and what was claimed to be conflicting evidence was mere pretense and without material and substantial value. But, of course, the rule that a verdict or finding will not be disturbed where there is a real and substantial conflict of evidence on the issue of fact involved, applies to litigation over the validity of wills as well as any other kind of litigation; and, in our opinion, this rule as to conflicting evidence applies to the case at bar and to the finding that the deceased was of unsound mind and incapable of making a will at the time of the alleged making of the will here in question. We will not notice in much detail the evidence on which the finding is based, but will notice only a few leading circumstances. The document in question was signed by the deceased, by making his mark, at the hospital of the National Soldiers’ Home of Los Angeles County, about ten o’clock A. m. of February 26, 1905. He had been in the hospital several days suffering from an attack of acute pneumonia, which caused his death. He was in an exceedingly weak and feeble condition physically. One of appellant’s witnesses says: “I saw Mr. Doolittle make his mark. He tried to write his name but could not do it. He was weak and could not sit up straight in bed.” The evidence shows that he was evidently about as weak and feeble physically