In Re Estate of Soberanes

WILBUR, J.

—This is a contest of the will of Ysabel Boronda de Soberanes, within one year after probate, by Porfirio Soberanes, her son, upon the grounds that the will was not properly executed, that the testatrix was of unsound mind, and that the will was executed under undue, influence. The first ground of contest was withdrawn, and a motion of nonsuit was sustained as to the others. The contestant appeals from the judgment, claiming that the evidence was sufficient to establish a-

prima facie

case for the jury. The testatrix died February 19, 1916, aged eighty-four years. By the terms of her will she left all of her property to her daughter Clotilda, with whom she was residing at the time of the execution thereof. The husband of testatrix died in 1887. Thereafter the testatrix deeded her inheritance to her son Abel. These transfers were unsuccessfully attacked by the other children

(Soberanes

v. Soberanes, 97 Cal. 140, [31 Pac. 910]; Id., 106 Cal. 1, [39 Pac. 39, 527]), acting through Isabel Soberanes as guardian

ad litem

for the mother. In 1896 Abel died, devising the land so conveyed to his sister Clotilda, subject to an annuity of three thousand dollars in favor of the mother. A general. guardian was thereafter appointed for testatrix

[527]

id 1896, and she remained under such guardianship until April 13, 1901, when the guardian was discharged and she was restored to capacity. Shortly thereafter the will under attack was executed (November 23, 1901). About a year later the testatrix'4 waived the annuity in favor of the daughter Clotilda by instrument executed August 13, 1902, recorded September 3, 1902, and by a deed of the same date, recorded September 10, 1902, the testatrix conveyed to the same daughter her interest in certain real property. Thus the only estate left by the testatrix was $372.70. The surviving children of the testatrix were Benito A. Soberanea, a son sixty-five years of age, the contestant Porfirio, a son fifty-eight years of age, Josefa Soberanea de Boronda, a daughter fifty-five years of age, and Clotilda Soberanea, a daughter about fifty years of age. There were also three children of a deceased son, Jose Feliciano Soberanea. The son Benito contested the will before probate. Without quoting the will in full, it states that the testatrix leaves all her property to her daughter Clotilda, with whom she is living and expects to live until her death; that since the death of her son Abel this daughter is the only member of the family with whom she has been happy; that the daughter and her husband have “spared neither time nor money to make life pleasant and agreeable to me, . . . often receiving little or no pecuniary compensation for money and labor expended in my behalf, and by reason of their kindness to me drawing upon themselves the hatred. of my other children. ’ ’ Testatrix gives las a reason for disinheriting her other children the fact that by “their unfilial conduct by continually harrassing me in the courts year after year, suit following suit, willing to squander their own fortunes in attempting to deprive and for several years depriving me of the control of mine causing me great financial loss, ungrateful to me when I have helped them, those whom. I have helped the most being if possible the most violent toward me, heedless and thoughtless of me in my loneliness, with never a kind or loving word or act for me in my old age and double bereavement of husband ánd son, and, apparently at least without ever a thought for my happiness or welfare they have filled,my life with bitter sorrow which time cannot efface.” The will was drawn by an attorney, in accordance with the instructions of the