Estate of Ross

This is an appeal from a judgment of court upon verdict of a jury in favor of proponents in a contest of the will of Isaac J. Ross, deceased.

There was a former appeal, in which this court reversed a judgment entered after the sustaining of a motion for nonsuit. (Estate of Ross, 173 Cal. 178, [159 P. 603].) At the second trial the contestants introduced virtually the same testimony as that produced upon the previous hearing, and, as a summary thereof was given by Mr. Justice Henshaw in the opinion which appears in the one hundred seventy-third volume of the California Reports, we refer to that opinion as containing a fair statement of the essential matters regarding which testimony was given for the contestants.

This testimony was opposed at the second trial by that of witnesses who stated their belief that Mr. Ross was of sound and disposing mind at the time of the testamentary act. Some of these witnesses were old friends who had known Mr. Ross long and intimately. Some of them visited him frequently during his last illness, and they testified that his mind was unusually bright and vigorous for one of his age, in spite of his great physical weakness. One witness was a nurse (not the one mentioned in the opinion on the former appeal), who gave it as her unqualified belief that before and at the time of the preparation and execution of the will her patient was of sound and disposing mind. Upon cross-examination, this witness (Mrs. Shinn) was asked about a written statement produced by counsel for contestants and purporting to have her signature at the end thereof. While admitting that she had signed a statement, she refused to admit without reservation that the name written on the document exhibited was her own, because, as she said, some of the letters did not look like her writing. She also expressed the *Page 631 belief that the statement shown to her in court contained more pages than the one to which her signature had been appended. Counsel who prepared the statement from Mrs. Shinn's dictation testified that the document offered by him was the very statement signed by the nurse. The last sentence of that writing, appearing just above the date and purported signature, was as follows "I do not believe that his mind was clear at all times and he had spells when I do not think his mind was clear." In an admittedly genuine letter written after the death of Mr. Ross, Mrs. Shinn (writing of her grandmother whom she was then nursing) used the following expression: "Here is another such a case as Mr Ross only he seemed to have his right mind part of the time and grandmother is entirely void of reason which makes her case a great care." In explanation of this statement, she testified: "When I made reference in the letter that I wrote to Mr. Dignan to Mr. Ross not being right I thought Mr. Ross was in his right mind up to the last few days; I considered him of sound mind. The last two or three days he was kept under opiates. It was that time to which I alluded." She also testified as follows: "There was never any time there when I thought that his mind wandered at all, either night or day. I have never for an instant either during the time that I was attending him or since his death doubted at all the soundness of Mr. Ross's mind. I never expressed in conversation with anybody any doubt as to the soundness or unsoundness of Mr. Ross's mind. I often remarked how remarkable it was, how strong his mind was."