Estate of Kile v. Wilhoit

McFarland, J. — This is an appeal from an order of the Superior Court admitting a will to probate. Counsel for appellant elaborately argues questions relating to the due execution and attestation of the will, but the only written ground of opposition to the probate thereof taken by appellant — as provided by section 1312 of the Code of Civil Procedure — was the incompetency of .the decedent to make a will. She divides her alleged grounds into three distinct paragraphs, but they all three together mean only this: that at the time the will was made the deceased was not of sound and disposing mind and memory. The issue thus raised was presented to a jury in the form of the following question: “ Was the testator, Joseph Kile, on the fourth day of April, 1883, and at the time of the execution of the will in contest, of sound and disposing mind?” And the jury, after hearing a great deal of evidence, returned an affirmative answer to the question. There was a substantial and very marked conflict in the evidence as to the point of decedent’s mental condition at the time the will was made; and we would not be at all warranted in holding that it did not support the verdict. This view disposes of the ease; for appellant can be heard only as to those [133]matters which she presents in her written grounds of opposition.

Judgment and orders affirmed.

Sharpstein, J., McKinstry, J., and Paterson, J., concurred.

Thornton, J., concurring. I concur in the judgment.

The evidence as to the sound and disposing mind and memory of the testator is conflicting, and the order should not be reversed on that ground.

Conceding, but not deciding, that the testimony on the other points argued is properly before us, I am of opinion that, as to those points, the statute as regards execution of the will has been complied with.

Temple, J., dissented.