In Re the Estate of Black

McFARLAND,J.

—This is an appeal by the contestants of the will of Mary A. Black, deceased, from a judgment probating said will and from an order denying their motion for a new trial.

As to the contention that the evidence did not justify the verdict, waiving the technical point made by respondent, it is enough to say that the evidence largely preponderates in favor of the findings of the jury.

Appellants’ main contentions relate to the instructions to the jury. The case ought to have been a reasonably simple one, but the parties managed to get it into a labyrinth of legal propositions. The attack on the will made in the pleading of appellants had very feeble support in the evidence; but, apparently, respondent feared to stand on the real merits of his

[394]

case, and sought unnecessarily to fortify his position by numerous objections to evidence, and a multitude of instructions, and thus enabled his opponents to make a more respectable showing on appeal than they made in the trial court. At the request of respondent the court gave the jury thirty-six mortal instructions, covering sixteen pages of the printed transcript, while appellants asked for twenty-seven more, seventeen of which were given and ten refused. It would be surprising if such a record did not show some errors. However, in the statement on the motion for a new trial, the assignments of error as to the rulings of the court in the matter of instructions go only to parts of such rulings. We will notice only such points made in their brief as are based on the record.

The giving of respondent’s instruction 4, which is so elaborately discussed by appellants, is not'assigned as error. It is proper, however, to say that it has not the meaning ascribed to it by appellants. It does not mean that appellants must have proven, conjunctively, both mental unsoundness

and

undue influence in order to have succeeded in upsetting the will; it merely means that a preponderance of evidence was necessary to establish mental unsoundness, and that such preponderance was also necessary to establish undue influence, and could not have been otherwise understood by the jury. Each of the three issues of mental unsoundness, undue influence, and fraud was separately submitted to the jury at the request of appellants, and no other issue was requested to be or was so submitted; and a finding for appellants’ upon any one. of these issues would have resulted in a judgment in their favor. There is no assignment of error as to instructions numbered 5, 6, or 7, which contain mere statutory definitions. The giving of subdivisions 5 and 7 of instruction 8 is assigned as error, but no argument is made as to these subdivisions. Appellants insist that instruction 9 is erroneous, and so prejudicial to appellants as to require a reversal. This instruction is on the subject of undue influence, and—like some others—is perhaps subject to the criticism that it has too many words in it; but when closely examined it will be found, we think, to be substantially in accord with the principles announced on that subject in