In re Spencer

McFarland, J. — This is an appeal from a probate order denying a motion for a new trial in a contested will case. Counsel for respondents argue very elaborately that the said order is not appealable; but although the provisions of the code about appeals from probate orders are not as clear as they might be, it must be held as settled practice since the decision in the Estate of Bauquier, 88 Cal. 302, that when there has been a regular contest over the probate of a will, an appeal lies from an order denying a motion for a new trial.

Mary C. Spencer died in January, 1888. In September, 1884, she made a will, duly executed, in which she gave all her property, except five dollars, to her daughter, Ida McDannel, and May McDannel, the infant daughter of the said Ida, with a provision also for other daughters-of said Ida, if any such should thereafter be born. At-the date of the will said Ida McDannel was the only living child of said testatrix.

There had, however, been another child of the testatrix, a son named Homer T. Spencer, who had died before the date of the will. He had married a lady whose maiden name was Ella Murphy; and there had been born to said Homer and Ella a son named Rufus Homer Spencer, who at the date of the will was about one year-old. To this son the testatrix gave by her will five dollars; and he, by his guardian, contested the probate of the will, upon the ground that at the time the will was made “ she, the said Mary C. Spencer, was not of sound and disposing mind.” (There were other grounds of' contest, which need not be noticed.) The main issue was submitted to a jury, who found in favor of the validity of the will, and judgment was entered admitting it to probate. The contestant made a motion for a new trial, which was denied, and he appeals from the order denying his motion.

The record presents nearly one hundred alleged errors committed by the court in-ruling upon the admissibility of evidence, and in instructing the jury. Some of these will be briefly referred to hereafter; but it is difficult to [450]conceive how the verdict and judgment could have been different if the court had ruled throughout the trial as asked by appellant. And in such a case a judgment will not be reversed even though some errors have occurred during the progress of the trial. (In re Briswalter, 72 Cal. 107; Green v. Ophir Co., 45 Cal. 522; Levitzky v. Canning, 33 Cal. 299.)

There is no pretense that Mrs. Spencer was of unsound mind in any general sense. It- appears clearly that she was a woman of excellent judgment and discretion in the ordinary affairs of life. She must have had exceedingly good business capacity; for, thrown suddenly on her own resources with but little property, and that heavily encumbered, she managed to raise her children well, giving her son, at least, an expensive education, and to accumulate quite a little fortune. None of her friends and acquaintances who had known her for many years — and there were more than a score of them who testified—ever had a suspicion of her insanity.