Carpenter v. Bailey

McFarland, J. This is a contest over the will of Charles W. Carpenter, deceased. Special issues were submitted to a jury, who found that the will was not procured to be made through fraud exercised by any one, and was not procured to be made in the form in which it was made through undue influence exercised by any one, and was executed and attested according to law; but the jury also found that the deceased, at .the time of the execution of the will, was “of unsound mind,” was “incompetent to make a will,” and did not have “ sufficient mental capacity to comprehend fully,” etc. Thereupon the court entered an order revoking the will (which had previously been admitted to probate). The proponents, executor of the will, and devisees and legatees, appeal from said order, and also from an order denying a new trial.

The issue upon which the contest was determined was the testamentary capacity of the deceased. Some witnesses were examined on both sides as to their opinions of the mental sanity of the deceased, on the ground that they were intimate acquaintances, within the meaning of subdivision 10 of section 1870 of the Code of Civil Procedure; and it could not be correctly said that, outside of those opinions, there was sufficient evidence to justify the finding of the jury. The principal witness on that point for the contestants was George M. Plurlburt; and he was, indeed, about the only witness on that side who expressed a positive opinion that the deceased was insane or of unsound mind. Appellants contend very strenuously that there was no sufficient showing' of Hurlburt’s intimacy with the deceased, under the section of the code above mentioned, to warrant the court in allowing him to give his opinion. While the showing of intimacy was not very strong, still there was considerable evidence to that point; and we cannot hold that the court erred in admitting the testimony.- But we are; satisfied that the court did err in refusing to allow the [385]witness of the appellants, H. W. Weaver, to give his opinion of the mental sanity of the deceased. The evidence of his intimacy with the deceased was much stronger than that of the intimacy of Hurlburt; and the two rulings were inconsistent. The preliminary testimony of Weaver was as follows:—

“I live in Stockton; have lived here sixteen years. I know C. K. Bailey, and I knew Carpenter in his lifetime. I became acquainted with Carpenter in 1875. I became intimately acquainted with him about 1877. From 1880 to the time of his death I conversed with him quite frequently. I met him in the city of Stockton, and on Bailey and Carpenter’s ranches. I know three ranches, —the home ranch, the ranch on the plains, and the ranch in the mountains. I never saw him on the plains ranch. I met him on the home ranch twice, — once in 1879 and and once in 1881. In 1879 I saw him a few minutes; I stopped a few minutes; I was on business. In 1881 it was about the same. I stopped there as I was passing by; stopped there and saw him; I saw him but a few moments at the mountain ranch; it was in 1882 or 1883. I was there two or three days. I had two or three conversations with him at that time. He was shearing sheep, and we had some conversation about shearing,— about the condition of his sheep. Then one evening he came up to our camp, and we had a general conversation with him; conversed on general subjects. I met him in my office in Stockton quite frequently, and conversed with him generally on business matters. I saw him twice during his last sickness; the first time I talked with him five or ten minutes; the second time I asked him how he was; that was about all the conversation I had with him. I met him in Sacramento; he was a witness there in a case in which I was an attorney; the case never came to trial. I examined him in regard to what the nature of his testimony would be; examined him on what his knowledge of the case would be. I met him a