Estate of Gunther

RICHARDS, J.

This appeal is from a judgment of the superior court of the county of Humboldt refusing to revoke the probate of the last will and testament of Friedrick Robert Gunther, entered upon granting the motion for nonsuit upon the hearing of appellant’s petition for the revocation of the probate of said will.

Friedrick Robert Gunther, also known as Robert Gunther, died on the nineteenth day of May, 1924, at the city of Eureka, county of Humboldt, of which city he was a resident for many years, and in which county and elsewhere, he left property, both real and personal, of considerable value. He left a last will and testament which had been executed by him on August 25,- 1923, which was in due course admitted to probate in said court on the nineteenth

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day of June, 1924. Thereafter and on July 31, 1924, Leland Gunther Hewitt, a minor, then of the age of nineteen years, appearing by his guardian

ad litem,

filed his petition in said court for the revocation of said will, alleging that the decedent was unmarried during his life and at the time of his death left surviving him as his only relative and heir at law the said minor, who was the son of a daughter of a brother of said deceased. Two grounds of contest were urged by said petitioner for the revocation of said will, the first being that said decedent was not at the time of the execution of his said will of sound mind and was not competent to make a will; second, that at the time said decedent executed Ms said last will and testament he was laboring under a certain insane delusion with respect to said petitioner, and that as a result thereof he had „ made no provision for said petitioner in said will, but on the contrary had expressly refrained from so doing. The executor of said will, Charles P. Cutten, and two legatees named therein, E. L. French and Mrs. W. H. Mathews, appeared separately, although by the same counsel, and by their respective answers put in issue the averments of said petition with relation to the deceased’s unsoundness of mind and of the existence of the alleged insane delusion at the time of the execution of said will. The issues thus presented came on for trial and were heard before said court on the eighth day of June, 1925, the said hearing occupying several days. At the conclusion of the petitioner’s case the respondent made a motion for nonsuit upon each of the said grounds of contest, based upon the insufficiency of the proof offered by the petitioner in support thereof. The court granted said motion and thereupon entered its judgment, refusing to revoke the probate of said will. The petitioner moved for a new trial and upon the denial thereof has taken and prosecutes this appeal.