Dougherty v. McKagney

VAN DYKE, J.

This is an appeal from the judgment and order affirming the probate of the will of Patrick Dougherty, deceased, and denying the petition of Edward Dougherty, the appellant, praying that said probate be revoked and declared of no effect. The record on the appeal contains a bill of exceptions prepared and settled on the motion for new trial of the case.

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The main contention on the appeal is, that the decision of the court below is not supported by the evidence, and that on the evidence the petition for revocation of the will should have been granted.

This contention on the part of the appellant is based upon the ground that at the date of the execution of the will, and for a long time prior thereto, said Patrick Dougherty was not of sound and disposing mind, and was incompetent by reason thereof to make a will, and the'main contention on the appeal is, that the finding and judgment of the court below, adverse to the petitioner (appellant herein), is not Justified by the evidence, but contrary thereto. The will of Patrick Dougherty is dated February 21, 1901. After making several bequests, in the tenth clause the following occurs: “I purposely omit any bequest, gift, or provision for Edward Dougherty, my nephew, now residing in San Francisco, California, because I consider suitable provision has been made for him out of the estate of my deceased brother, John Dougherty.” It is contended on the part of the appellant that it was in fact a mistake in his uncle in supposing that provision had been made by his brother, John Dougherty, as the will of the latter, which is also introduced in evidence, shows. The will of John Dougherty bears date March 6, 1892, and contains a clause that if at the death of both Patrick Dougherty and Rosa Dougherty, his wife, to whom he devised property, there should remain undisposed of his real estate, with improvements thereon, in San Jose (describing the same), “then it is my desire that said real estate shall go to my nephew, Eddie Dougherty, although nothing here contained is to be in any way construed, as to hinder or prevent the absolute disposition of said property by said devisees, or either of them, if they so choose.” In the testimony of the petitioner, Edward Dougherty, he states: “I cannot account for the provision in the will of Patrick Dougherty, excluding me from a share of his estate on the ground that I was already provided for out of the estate of his brother, John Dougherty. I received not a five-cent piece from John Dougherty’s estate; therefore I am of opinion that Patrick Dougherty was of unsound mind when he made his will on February 21, 1901.” He added that his uncle was of the age of eighty-four and upwards, and was afflicted with bodily disease and absent