In re Estate of Dalrymple

California Supreme Court Sep 18, 1885 No. No. 8872Published

Before: Foote

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Holding. The court affirmed the order admitting the will to probate and the order denying a new trial, holding that the trial court correctly managed the jury issues, properly allocated the burden of proof to the contestants, and did not err in its evidentiary rulings or jury instructions.

Issues

Whether the trial court properly defined the issues for the jury and the respective roles of the court and jury in a will contest.
Whether the trial court correctly placed the burden of proof on the contestants as plaintiffs.
Whether the trial court erred in its evidentiary rulings regarding witness testimony on the testator's sanity.
Whether the trial court correctly instructed the jury and handled the submission of issues.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence submitted to the jury being conflicting upon all the material issues, their verdict should be upheld.”

“The court rightfully said “as to all matters involved in the issues raised by the contest, the contestant is plaintiff and must go forward.””

“The order of the court admitting the will to probate and appointing Peter Alferitz administrator, etc., and that denying a new trial, ought to be affirmed.”

Synopsis

Will — Contesting Pbobate—Jury Tbial.—In a contest as to the probate of a will, where a jury was impaneled to try the issues, the contestants were not prejudiced by the action of the court in submitting to the jury certain issues proper in themselves, but amounting substantially to a repetition of others presen tedby them and allowed by the court, and on which the jury found against them.

Id.—Pbactice—Cedes of Proof.—In such a case, the contestants are plaintiffs, and have the affirmative of all the issues raised by the contest.

Id.—Insanity—Evidence. — It being claimed that the will was invalid by reason of the insanity of the testator at the time of its execution, evidence was admitted as to his sanity at other times during the course of a progressive disease supposed to have affected his mind. Held, that the evidence was properly admitted.

Id.—Ground of Contest not Included in the Issues. — Where a question affecting the validity of the will is not included in the issues submitted to the jury, the court may proceed to determine it upon the evidence.

Foote, C. The tenth and eleventh issues allowed to be tried by the jury in this, a case of the contested probate of a will, were not in themselves improper, under the rule laid down in the Gharky Case, 57 Cal. 274.

The contestants claimed those issues to be substantially a repetition of the seventh and eighth tendered by them and allowed by the court, and that those last wherein the jury found against them were the true issues upon the matters to which they related. If this bp true, contestants cannot complain, since the finding of the jury upon those issues support pro tanto the order or decree made and entered by the court.

There can be no reasonable ground to doubt that section 607 and section 1312, subdivision 4, of the Code of Civil Procedure, as construed in the Estate of Collins, Myrick’s Reports, 73, constituted “ on the trial the contestants plaintiffs, and the petitioner defendant.” The reason there given that the matter is entirely controlled by the statute seems to be conclusive.

The court rightfully said “as to all matters involved in the issues raised by the contest, the contestant is plaintiff and must go forward.”

The evidence submitted to the jury being conflicting upon all the material issues, their verdict should be upheld.

Objection is urged to the competency of the testimony of various witnesses for the proponent. It is claimed that not being experts they should have established their intimacy with the testator, and before being permitted to testify as to their opinions of his sanity or insanity, should have stated the reasons therefor.

The testimony as delivered by the witnesses appears to have made evident the intimacy required, and to have included the reasons for their opinions.

The objection that the witnesses testified to the condition of mind of the testator at times too remote from that of the execution of the will is not tenable. The disease causing his insanity was a progressive one.

The court committed no error in admitting or excluding any [446]of the evidence offered. (§ 1870, subd. 10, Code Civ. Proc.; People v. Sanford, 43 Cal. 33; Estate of Toomes, 54 Cal. 509.)

The law as contained in the instructions given by the court to the jury and allowed to go to them as requested by counsel, is properly stated. The modifications of instructions made were correct, as was also the refusal of certain of them.

In re Estate of Dalrymple

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