Estate of Jones

[119]

MELVIN, J.

I dissent from the order denying the petition for a hearing in Bank. In my opinion the evidence totally fails to show any such unsoundness of mind as would operate upon the testamentary capacity of the decedent. There was evidence of many eccentricities and peculiarities, including sudden outbursts of temper, but there was not one word of testimony indicating that up to the time of his last illness William Jones was not able to attend to all of his business matters in a normal way. There was no direct evidence contradicting the witnesses to the will" and the statements of the attending physician and the nurse that at the time of the making of his will he was of sound and disposing mind. Nor was there anything related in the testimony regarding his condition in the hospital or before he went there which would show that condition of general insanity which must have or even

might

have deprived him of the power of making a valid will. The decision in this case virtually overrules such cases as

In re Redfield,

116 Cal. 641, [48 Pac. 794], and

In re Wilson,

117 Cal. 264, [49 Pac. 172, 711], which hold that the evidence necessary to overthrow, on the ground of mental unsoundness, a will solemnly executed shall disclose such mental obliquity as must have operated upon the testamentary act itself.

I am also unable to agree with the opinion of Mr. Justice Shaw that the child of William Jones was adopted in contemplation of the provisions of section 230 of the Civil Code. Even if a man living alone in a permanent abode has a “family” sufficient for the purposes of the statute, the facts of this case absolutely fail, in my opinion, to show that William Jones received his illegitimate son into such family for the purposes of adoption or in any manner to bring the boy’s visit within the purview of the statute. The child accompanied its mother and her husband and a younger child born to her after her marriage to Baker on a visit of two months to the home of Jones. At that time and at

all