In re Yoakam

Belcher, C. Emily R. Yoakam died in the county of Los Angeles, leaving an alleged last will, which was dated March 4, 1893. The respondents filed in the court below the said will and their petition, asking that the same be admitted to probate. / In due time the appellant appeared, and contested the probate thereof upon the grounds, among others, that its execution was procured by the undue influence of certain persons, none of whom were named therein as legatees or executors. A general denial of all the allegations contained in the written grounds of opposition was filed by respondents.

By agreement, the issue as to the alleged undue influence in procuring the execution of the will was submitted to a jury, and by their verdict the jury found in favor of appellant on that issue.

Subsequently, on motion of respondents, the court made and entered its order granting a new trial of the contest, and from that order this appeal is prosecuted.

The notice of the motion for a new trial stated that the motion would be made upon the minutes of the court, and upon the ground that the evidence was insufficient to justify, the verdict. Appellant contends—and this is the only point made for a reversal—that' the notice did “ not properly or at all specify the particulars in which the evidence was alleged to be insufficient, as required by subdivision 4 of section 659 of the Code of Civil Procedure, and that the motion should therefore have been denied.”

The specifications contained in the notice are as follows :

“ The evidence was insufficient to justify said verdict in this: The evidence showed that the said alleged will was signed by the testatrix in the presence of the subscribing witnesses thereto on the fourth day of March, 1893, and that she, at that time, requested said subscribing witnesses to sign the same as witnesses, and that they signed the same on that day as such witnesses [505]at her request and in her presence; that the said decedent, at the time of the signing of the said alleged will, declared the same to be her will, and that she was at that time, and always, of sound mind, and competent to make a will, and that she was not at that time, or ever, under undue influence, or influenced by fraud; that there was no undue influence, or any influence, exerted at that time, or ever, over decedent in the making of said alleged will, or with reference thereto, by Dr. Hodge, Henrietta Davis, Minda Davis, D. W. Davis, or either of them, or by any one, and that the evidence shows that the said alleged will provides for an equitable distribution of the estate of the decedent among the proper subjects of her bounty, and is fair and just in its provisions.”