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once a month that he talked to her; he never visited her home during that period, but she came to his house occasionally and visited with his wife. In ordering groceries she did not appear to be of unsound mind and in her conversation generally she would talk just like any other acquaintance, but sometimes she would talk in a rambling fashion, although not when she was ordering groceries.

Dr. A. J. Duncan, a practicing physician, testified that he knew Miss Ramey perhaps twenty years; that he would see her frequently; that at the request of Mr. Welsh he visited her while she was at the hospital, some time between February 22d and March 1st, she was in bed and he stayed only a few minutes. When he went into the room she recognized him, called him by name and he asked her how old she was and she told him. He knew at the time that she was subject to epileptic fits. After he found out who it was he declined to make any further examination, but from the examination he made and his knowledge of her case generally he did not consider her competent and his reason for the opinion was: “I believe that a person that is subject to chronic epilepsy at her age deteriorates mentally." He admitted that at the time of his visit to her he did not consider himself competent as a physician and surgeon to pass upon the mental capacity of Miss Ramey and that apparently at that time she was perfectly rational.

The foregoing we consider a fair synopsis of the evidence before the court when the motion for nonsuit was made and denied.

Thereupon proponent called Mrs. J. McFadden, in whose house Miss Ramey had occupied apartments at different periods from March, 1910, to the latter part of January or first of February, 1921, when she went to the Rideout Hospital, two weeks before the execution of the will. The witness saw testatrix frequently during this period and had opportunity of observing her manner and actions and had conversations with her. She observed her as she would any. one else under the same circumstances and was no more interested in her than in anyone else. The witness declared that during the entire period Miss Ramey seemed to be of sound and disposing mind; that she did not see anything to the contrary; that Miss Ramey managed her own affairs, attended to her own business and when she wanted to pay her rent she went down to the bank and got her money to pay it with. The witness saw testatrix three times after she went to the Rideout Hospital, where witness visited her. She went there because she thought Miss Ramey might be lonesome and she had conversations with her on these visits; she did not remember what the conversation was, but conversed with her as she would with anyone else; that the only circumstance she remembered was that the hospital bills had been presented to Miss Ramey and the latter said she had no way of paying bills until Mr. Welsh came in and she would have him bring checks for her and testatrix was worried that bills were presented to her when she expected him to attend to that matter. The witness remembered that previous to that, it might have been six months previous, when testatrix was somewhat indisposed, witness had at the request of testatrix written to Mr. Charles E. Welsh to come in when it was convenient to see Miss Ramey. As to the epilepsy, witness testified that testatrix would lapse into unconsciousness without any premonition at all that it was going to occur; testatrix told her that she did not know for a half minute beforehand that the spells were coming on; witness never saw her when she passed into unconsciousness, but was informed immediately or heard her and took occasion to have her placed upon the bed. Sometimes she would be six months free from them, then again she might have two very close together; testatrix never required a physician, but Doctor Gray had told her that she had better go to the Rideout Hospital, as she had no attendant in her room and she would improve faster in the hospital. While testatrix was ill at her home witness visited her several times a day and she had no spasms or convulsions, and her physical condition when she visited her at the Rideout Hospital was about the same as when she left the home of witness.

As stated by appellant, Mrs. McFadden was apparently the closest and most intimate acquaintance of Miss Ramey during the period in which she knew her, and her testimony was clear and emphatic that testatrix was of sound and disposing mind at that time.

C. A. Emory, whose wife is a grandniece of Miss Ramey, knew the testatrix for about seven years; he was a grocery clerk in Yuba City most of the time from the fall of 1917 to the spring of 1920; before going to work in the store he would see her probably once in every two weeks, meet her on the street or at home and had general conversations with her now and then; she did some of her trading at the store and he generally waited on her. He had opportunities to observe her conduct and manner generally and he would say that she was very much of sound mind; she knew exactly what she was coming to the store for, the price of everything she wanted, whether it was cheaper at one place than another and could hold an ordinary conversation as well as anyone as far as witness could state. The last time he saw her was in January, 1921, in front of the postoffice and he had a conversation with her at that time, that she asked him how everything was, about the family, wife and children. She named the wife and children. He observed nothing in her manner, speech, or conversation at that time indicating any difference in her mental condition from what it had been during the entire period that he knew her..

Dr. Fred B. Tapley testified that he had been a practicing physician since 1916 and had made a study of epilepsy and its effect upon the mind and body of the patient; he knew testatrix in her lifetime, for fifteen or twenty years; he called to see her once about ten years ago when she had an epileptic fit; the next time he saw her was in the Sutter County Hospital about a year before the trial, between February 19 and March 7, 1921. He was called there to pass on her mental condition and as to that he stated : “Well, after talking with her quite a while we decided there wasn't much wrong with her at that time outside of her age and feeble condition due to her age, found she was mentally competent.” When he made the examination he knew her history in a general way in reference to epilepsy; that epilepsy, even when chronic and extending over a considerable period of years, does not necessarily result in insanity, and does not frequently so result; that these fits did not render testatrix insane or of unsound mind.

He was followed by a large number of witnesses, includ. ing nephews and nieces of testatrix, a physician of experience in the treatment of epilepsy who was also acquainted with Miss Ramey, and other acquaintances, who testified that, in their opinion, she was of sound and disposing mind. There was also evidence of some minor and incidental matters, but we deem it unnecessary to reproduce it.

We have thus called attention to the testimony at considerable length for the reason that appellant earnestly insists that it is utterly insufficient to sustain either finding of the jury, and also to indicate the significance of certain rulings of the court.

In considering the question of the support for the findings, certain legal principles must, of course, be regarded. We may mention only the following: [1] The burden of proof is upon contestant, the presumption being, manifestly, that the testatrix was of sound and disposing mind and free from undue influence. (Estate of Latour, 140 Cal. 414 (73 Pac. 1070, 74 Pac. 441); Estate of Stone, 172 Cal. 215 (155 Pac. 992].) However, in will contests the rule is the same as in other proceedings, that all questions of the weight of the evidence and the credibility of the witnesses are for the jury and the trial court, and if there be any substantial evidence to support the finding or verdict it cannot be set aside by the reviewing court, although said court might believe the great preponderance of the evidence was the other way. (Estate of Snowball, 157 Cal. 301 [107 Pac. 598].)

[2] But as to the proof justifying a finding or verdict against the will upon the ground of unsoundness of mind, it must go further than to show that the testator was feeble in mind, suffering from disease and aged and infirm, it must be sufficient to warrant the inference that he was incapable of understanding the nature and situation of his property and of disposing thereof intelligently and was not free from delusions affecting his action. (Estate of Motz, 136 Cal. 558 [69 Pac. 294].)

[3] Also the proof of undue influence must be such as to show that there was a pressure exercised and exerted “which overpowered the mind and bore down the volition of the testator at the very time the will was made.” (Estate of Gleason, 164 Cal. 756 (130 Pac. 872).)

As to the c!aim of undue influence it is the contention of appellant that the record is destitute of any such showing. He points out that this issue was tendered, if at all, only in the contest of the Clements; that therein the sole specification of fact is that Welsh “by representing to said decedent that he would properly care for her in her sickness and that her other relations did not care what became of her and had no regard for her, he induced and persuaded her to make the said will." Appellant insists that there is no such evidence whatever. Assuredly, there is no direct evidence of any such representation. The nearest approach to a suggestion of that character is found in the testimony of Miss Wilcoxson that Miss Ramey stated to her that “Vr. Welsh intended to take care of her for the rest of her life and was preparing to take her to Oakland to a Home.” Nothing was said, however, as to such promise having been made to induce her to make a will in his favor, and it would hardly be just to construe this apparently innocent and praiseworthy intention as evidence of a previous wicked and sinister design to take advantage of Miss Ramey in the disposition of her property.

Without attempting to reproduce the argument of appellant upon this branch of the case, we deem it sufficient to state that he insists that we find none of the usual “earmarks” of undue influence; there was no evidence that she had any particular regard or affection for any of her relatives other than proponent, unless it be her nicce, Laura Stevenson, who testified for proponent, or that she was even acquainted with the Clements, the contestants who alleged undue influencc; that, on the contrary, she relied upon proponent for several years for assistance when she needed it, and as persuasive evidence of her regard for and confidence in him she sent for Welsh when she became ill a few weeks before the will was executed as she had done on previous occasions; there was no evidence of any attempt at solicitation, coercion, or any misrepresentation of any kind; and if it be admitted that a confidential relation existed between the parties, this does not even raise a suspicion of undue influence. [4] There must be some proof that such relation was used to take advantage of the testatrix, at the time the will was made, overcoming her free will and desire in order to invalidate the testament. (Estate of Nelson, 132 Cal. 182 [64 Pac. 294]; Estate of Ricks, 100 Cal. 450 (117 Pac, 532).)

While admitting that undue influence may be shown by circumstantial evidence-indeed, it can hardly ever be shown in any other way-appellant insists that the circumstances can do no more than excite suspicion that the proponent un

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