In Re Estate of Flint

WILBUR, J.

The will of the decedent having been probated, appellant petitioned for its revocation, alleging undue influence and unsoundness of mind. Issues were joined, and upon the trial thereof a judgment of nonsuit was rendered, and Russell Flint appealed, claiming that there was sufficient evidence of unsoundness of mind and of undue influence to be submitted to a jury. If there was substantial evidence on either subject, it was the duty of the trial court to submit the case to the jury. No useful purpose will be subserved by a lengthy statement of the evidence bearing upon the question of unsoundness of mind. There was evidence of the daughter, o'f a trained nurse, and business acquaintances, that, in their opinion, the decedent was of “unsound mind.” This evidence, however, as we have heretofore, in effect, held

(Estate of Collins,

174 Cal. 663, [164 Pac.

1110]; Estate of

[553]

Purcell,

164 Cal. 300, 306, [128 Pac. 932]), is of no greater value than the reasons given in support of the opinion, and is not alone sufficiently substantial to require the presentation of the case to the jury. The decedent was about 'eighty-five years old. The will was drawn three months and five days before he was accidentally ldlled while crossing a railway track. At the time of the execution of the will the wife of the testator (to whom he had been married sixty-five years) and their six sons and two daughters were living, their ages ranging from thirty-six to fifty-eight years. The wife predeceased her husband, dying about one month after the execution of the will. The point most strongly insisted upon by appellant is that the will itself, when compared with the actual facts concerning the decedent’s property and his dealings with his wife and children, show that the will was the product of insane delusions directly operating upon him at the time it was executed. The provision in regard to the wife is as follows:

“Secondly, all of my property, both real and personal and mixed of which I am now possessed is the community property of myself and my wife Mary E. Flint, but inasmuch as I have heretofore deeded to her valuable property as and for her own separate property, the income of which is more than she will need for the remainder of her life I make no provision for her in this will, my intention being at the time of the execution of said deeds that they should be an advancement of her interest and title in my estate. Should she, however, decline to accept said property so deeded to her as her share and demand her community share of my estate, then I desire such property to be appraised and considered as part of her share of said'community property.”