Weissich v. Behrens

Will—Contest of Probate — Pleadins — Inferential Averment of Heirship—Absence of Demurrer.—Upon the contest of the probate of a will, the description of the contestants as “brother and sister and heirs at law” of the deceased, in the introducing sentence of their opposition td the probate, without any direct averment of their heirship, constitutes an inferential averment thereof, which, in the absence of a demurrer to the opposition, will be held sufficient after judgment. ' ,, •

Id.—Support op Finding op Heirship—Sufficiency of Evidence—Absence op Specification.—Where there was slight evidence that the contestants were the next of kin of the deceased, in addition to an averment thereof in the petition for probate (to which there was a general denial), and the hearing of the contest seems to have proceeded upon the assumption of such kinship, a finding that the contestants were the next of kin of the deceased is sufficiently supported to make the rule applicable that the finding must be deemed conclusive, in the absence of a specification of the insufficiency of the evidence to justify that particular finding.

Id.—Contest op Olographic Will—Genuineness of Bate—Finding-Conflicting Evidence—Appeal.—Upon a contest oí the -probate of an olographic will, involving an issue as to the genuineness of the handwriting of its date, a finding upon conflicting evidence that the date was not in the handwriting of the deceased, and that the instrument proposed for probate was not the will of the deceased, cannot be disturbed upon appeal.

Id.—Opinion of Judge—Comparison of Handwriting—Oral Evidence— Record—Reasons for Findings.—Statements in the opinion oi the judge, showing that he was strongly'influenced in his conclusions by the comparison of the handwriting of the deceased, does not show that he improperly usurped the functions of an expert or that he disregarded the oral evidence. His opinion forms no part of the record, and his reasons for correct findings of fact are immaterial. .