In re Kohler
Before: Foote
Synopsis
Appeal—Review of Evidence.—The verdict of a jury will not be set aside by the appellate court for insufficiency of evidence where there is any evidence to sustain the verdict, or where the evidence is substantially conflicting.
Contest of Will—Undue Influence — Fraud.—The provisions of section 1575 of the Civil Code apply to undue influence generally, and are applicable to wills as well as to contracts. The same is true of the provisions of section 1572 of the same code, relative to fraud.
Id, -r- Incompetence of Testator — Pleading. — An allegation by the contestant of a will that the mind of the decedent was weak, debilitated, and deranged to such an extent as to incapacitate him from making or undertaking a will or codicil tenders an issue as to “the competency of the decedent to make a last will and testament,within the meaning of section 1312 of the Code of Civil Procedure.
Foote, C. This is an appeal from a judgment rendered upon the special verdict of a jury annulling a codicil to the last will of a decedent, and from an order denying a new trial of the contest of the codicil.
The testator, Andrew Kohler, made his will on the 19th of February, 1884, wherein he made several legacies, among them being one of five thousand dollars to the contestant, Miss Carrie Gerholdt, who seems to have been at that time a favorite niece. On March 4, 1885, he executed a codicil to that will, whereby he revoked the legacy given to the contestant.
The grounds of the contest are, that the testator was [315]fraudulently induced to execute the revoking oodicil; that undue influence was exercised to accomplish that end; that he was mentally incompetent when Jbe made the codicil.
The fourth ground, the informality attending the making of the codicil, was abandoned, and the special issues, from the seventeenth to the twenty-second inclusive, were withdrawn from the consideration of the jury-
Special issue Ho. 9, under the head of “undue influence,” was also withdrawn by contestant.
After the evidence on the part of the contestant had been submitted to the jury upon the issues then before them, a nonsuit was moved for by the appellant, which was refused. The proponents then presented their side of the case, the issues were submitted to the jury, and they found in favor of the contestant.
The court rendered its judgment, based upon the verdict: That the codicil in contest was, so far as its formal execution was concerned, in accordance with law,- but that it was not, in fact, the codicil of the testator, on the ground of his incompetency to make it, or to dispose of his property by will; that at the time he made it he was acting under undue influence and fraud practiced by other persons.
The appellants claim that the evidence was totally wanting in any of the necessary elements to sustain the contentions of the-contestant, even according to her own showing, and that a nonsuit should accordingly have been given in their favor.
A close scrutiny of the record has satisfied us that there was no such entire absence of evidence tending to prove the issues as submitted as would permit us to declare the action of the court below erroneous.
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