Estate of Tibbetts

McFARLAND, J.

This is a contest of the will of Clara L. Tibbetts, deceased. Her mother, Sarah A. Dyer, is the proponent, and John C. Tibbetts, the surviving husband of the deceased, is the contestant. The question was whether or not the will was the result of the undue influence of the mother, and of the sisters of the deceased, Mary R. Dyer and Minnie G. Trumbley, and of her half-brother, Fred L. Stevens, or any of them. This question was submitted to a jury as a special issue. The jury answered in the affirmative, and judgment was rendered denying the probate of the will on the ground of the alleged undue influence. The proponent appeals from the judgment and from an order denying a new trial. The main contention of appellant is, that there is not sufficient evidence to warrant the jury in finding the fact of undue influence. The case is undoubtedly a very close one, when considered in the light of former decisions of this court cited by appellant, and particularly the decisions in

Estate of McDevitt,

95 Cal. 17;

Estate of Langford,

108 Cal. 608; and

Estate of Wilson,

117 Cal. 269,—all of which cases were beyond doubt correctly decided, and rightly declare the law touching the subject of the contest of wills. But, after mature consideration of the case at bar, we have reached the conclusion that the evidence was not so entirely insufficient to support the finding

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of undue influence as to warrant us in disturbing the verdict. The verdict might with propriety have been the other way; but we cannot say that it was entirely outside the legitimate province of the jury.

The facts here are, in important particulars, different from those in the cases above cited. In the McDevitt case it appeared, among other things, that there was no evidence that “the subject of the testamentary disposition of his property was ever mentioned to the brother Andrew, ’ ’ who was charged with the undue influence, or that the latter knew of the execution of the will until after the death of the testator. The will in that case, after its execution, “was taken away by the attorney, and there was no proof that any member of Andrew’s family knew of it.” In the Langford case the testator, when he concluded to make his will, went, two or three weeks prior to its execution, “entirely alone to his attorneys,” talked his business affairs over with them freely and fully, and gave specific directions as to the provisions of the intended will. He called on his attorneys several times before the draft of the will was completed, and then executed it in their law office, in the absence of his wife, who was accused of the undue influence, and three years afterwards he republished it with a codicil. The facts in those two eases connected with the immediate execution of the will were very different from those of the case at bar. In the Wilson case the only point decided was in relation to the mental soundness of the testatrix when she made the will.