Estate of Walden

SHAW, J.

This is an application, under section 1664 of the Code of Civil Procedure, to have the succession to the estate of Matilda Walden determined. The court adjudged that Martha Monro was a niece of the decedent and was entitled to one-half of the estate, and that the five children of Jane Ross, deceased, who was also a niece of the decedent, were entitled to the remaining half. William Latimer and five other persons, claiming as descendants of James Latimer, a deceased uncle of the decedent, have appealed from this judgment and from an order denying their motion for a new trial.

The decedent, Matilda Walden, a childless widow, was the last survivor of the five children of William Wilson and Martha Wilson. The names of the five brothers and sisters were John Wilson, George Wilson, Matilda Wilson, Eliza Wilson, and James Wilson. John, George, and Eliza died childless. The controversy in this case arose over the question whether or not James, the other brother, died without issue. The court decided that he had children, of whom the said Martha Monro and the children of Jane Ross aforesaid are the only survivors. These, being the next of kin, were awarded the succession to the estate. The principal contention of the appellants is that this decision is not sustained by sufficient evidence.

[448]

There is no ground upon which this court can" interfere with the decision of the court below upon this question. The fact that James Wilson was a brother of the decedent and that the above mentioned persons are his surviving child and grandchildren was established by the testimony, of said Martha Monro, Robert Ross, Sarah Warren, Robert Wilson, Eliza Roe, Thomas Jones, Richard Kells, and, John Morton. There is nothing in this case to distinguish it from the ordinary case where a decision is rendered upon conflicting evidence. While it is true that the witnesses did not, upon cross-examination, sustain themselves to the entire satisfaction of the appellants, nevertheless, their testimony, if true, was sufficient to prove the validity of the claims of the respondents and the decision of the court below as to their credibility is conclusive upon this court. Even if we concede the claim of the appellants that the appellate court may weigh the evidence where all of the testimony is given by deposition, it is not of such a character that we would be justified in reversing the decision of the trial court upon the ground that it was an abuse of discretion. Unless such abuse appears the finding must stand.