In Re Estate of Stump

WASTE, C. J.

Emma A. Stump, a widow, died, leaving a will by which she gave the sum of one dollar to each of her eight brothers and sisters, and the remainder of her property to a nephew, Roy Zediker, and his wife, in joint tenancy. After the document was admitted to probate, David S. Zediker, a brother, Laura All, Susan Woodward and Carrie Foster, sisters, instituted a contest, alleging as grounds of opposition the mental incompetency of the decedent, that the will was not executed in the manner required by law, that it was the product of coercion and undue influence exerted by Roy Zediker upon the mind and will of the decedent, and that it was obtained through fraud, connivance, and conspiracy of the nephew and other persons practiced upon and against the decedent. Upon the conclusion of the testimony the trial court, over the objec

[310]

tion of contestants, directed the jury to return answers favorable to the proponents on all the special issues about to be submitted to it relating to the mental competency of the decedent, and the due execution of the will, thereby leaving for the consideration of the jury only the questions as to undue influence and fraud alleged to have been practiced upon the decedent. On these issues the jury also rendered its verdict in favor of the proponents. Judgment was thereupon entered sustaining the will, and the contestants have appealed.

The decedent had resided on a ranch in Fresno County with her husband, Allen E'. Stump, for a period of approximately twenty years. She had been an invalid and practically helpless for two or three years prior to her death, and was confined to her bed during the last illness of her hus-' band, who died in October, 1923. Shortly before his death, the husband and wife executed wills, giving all of their property each to the other for life, with remainder over to the nephew of Mrs. Stump, Roy V. Zediker, and his wife, jointly, no other legatees being named. W. J. Lohman, cashier of the First National Bank of Parlier, was named as the executor of each will. Some time after the death of her husband, Mrs. Stump executed another will, the one here in question. The instrument was prepared by the attorney for the First National Bank of Parlier, who was also the attorney for the executor of the estate of Allen E. Stump. It was executed in the presence of the attorney, the family physician, and W. J. Lohman, the executor of the husband’s will, who was again named as executor by Mrs. Stump. The testimony is clear and without contradiction that the will was properly executed, and that at the time of its execution the testatrix was in possession of her faculties and comprehended the nature of her testamentary-act. The will is not unnatural. The testatrix was childless, and her nephew and his wife had looked after the affairs of her husband and herself for two or three years before Mr. Stump died, and had cared for her after her husband’s death, and managed her property. The trial court very properly admitted the contents of the former will of the testatrix as tending to show a permanent and fixed state of mind with regard to her plan for the