Estate of Magerl

RICHARDS, J.

This is an appeal from a judgment of the superior court of Los Angeles County admitting to pro

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bate the will of Grace Magerl, deceased, after a .trial before the court, sitting without a jury, of a contest of said will by the appellant herein, who was a son of the decedent. The record upon this appeal is a very voluminous one, but the essential facts required for a determination of the appeal may be briefly stated as follows: The last will and testament of the decedent was executed by her on August 24, 1921, in Salt Lake City, of which city she was then a resident. By the terms of her will she devised and bequeathed to her son, Herman L. Martin, the appellant herein, a dwelling-house in -Salt Lake City and a one-half interest in certain personal property. To her husband, Joseph E. Magerl, she bequeathed all of her real estate situate in San Diego, California. All of the rest and residue of her estate she bequeathed to her sister, Berilla Ward, and the husband of the latter, E. E. Ward, equally, share and share alike. She appointed Berilla Ward executrix of her will and estate. Mrs. Magerl shortly thereafter left Salt Lake City for California, where she resided up to the time of her death, which occurred on April 21, 1924. On May 20, 1924, Berilla Ward offered the will for probate, whereupon Herman L. Martin, the decedent’s son by a former marriage, filed his contest and opposition to the probate of said will, wherein and also in his amended opposition thereto later filed he set forth two grounds of contest, namely, undue influence alleged to have been exercised upon his mother by Berilla Ward and others; and unsoundness of mind. A trial was had upon such contest before the court sitting with a jury, at the conclusion of which a motion for an instructed verdict was granted by the judge as to the ground of undue influence, but was denied as to the ground of unsoundness of mind. The matter being then submitted to the jury upon the latter ground, it rendered its verdict in favor of the contestant upon the issue of the unsoundness of mind and in favor of the proponent upon the issue as to undue influence. The proponent moved for a new trial, which motion was granted by the court, whereupon the contestant sought and obtained leave to file a second amended ground of contest and opposition to the probate of the will, in which was included a new ground, namely, that the will was procured through the fraud of Berilla