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WILLS (Continued).

not say that the entire showing was legally insufficient to warrant

the jury's finding of undue influence.-Id. 14. BENEFICIARY AS WITNESS WEIGHT OF TESTIMONY. In a will

contest upon the ground of undue influence, the jury, in weighing the testimony of the beneficiary under the will, have the right to consider his interest in the case and his manner on the stand, and, while not permitted to act capriciously or arbitrarily, if they believe he is not telling the truth when explaining certain ques. tionable incidents surrounding the making of the will, they are

authorized to reject his testimony.-Id. 15. SEPARATE CONTESTS — PLEADING ERROR APPEAL. Where two

separate written contests filed are treated as the first pleading in the action and, although both are undoubtedly defective, the facts omitted from each are found either in the other on in the petition for the probate of the will, the judgment in favor of the contestants will not be disturbed on appeal because of an erroneous ruling of the trial court in passing upon proponent's demurrer to

the contests.-Id, 16. GROUNDS OF CONTEST— EVIDENCE-INSTRUCTIONS.-In a will con

test in which many different grounds of contest are attempted to be set up, but evidence is presented in support of only two thereof, it is not prejudicial error to fail to specifically instruct the jury to disregard all allegations of contest other than those two, where such an instruction is not requested and the court does instruct the jury that “the issues which you are to determine in this action are the following,” specifying the two in support

of which evidence was presented.-Id. 17. DEFINITION OF UNDUE INFLUENCE — INSTRUCTIONS. - In this will

contest upon the ground, among others, of undue influence there was a sufficient showing of circumstances to justify the court in reading to the jury section 1575 of the Civil Code, as to

what constitutes undue influence.-Id. 18. ACTIONS OF BENEFICIARY RELATION TO ATTORNEY - EVIDENCE — INSTRUCTIONS.-In a will contest


the ground, among others, of undue influence, it is not prejudicial error to give an instruction that “it is proper for the jury to take into consideration all the actions” of the beneficiary under the will “as shown by the evidence at and immediately prior to the execution of the instrument”; neither is it prejudicial error to direct the jury that said beneficiary's relation to and connection with the attorney who drew the will might be considered as a circumstance


will contest upon the grounds of incompetency and undue in

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WILLS (Continued).

fluence, an instruction that "inequality in the distribution of prop erty among those who would inherit if no will had been made is not of itself evidence of undue influence or unsoundness of mind, yet it may be considered as a circumstance by the jury together with all the other facts and circumstances shown by the evidence as tending to establish undue influence or unsoundness of mind," while self-contradictory, is not prejudicially erroneous and is not violative of section 19 of article VI of the state constitu


- In

will contest, where there is no evidence of any false representations, it is not error to refuse a requested instruction on that subject, even though

such instruction embodies a sound legal principle.-Id. 21. CONSTRUCTION - INTENT - UNCERTAINTY. - A will is to be con.

strued according to the intention of the testator, and in case of any uncertainty arising upon the face of the will as to the ap. plication of any of its provisions, the testator's intention is to be ascertained from the words thereof, and to that end all the parts are to be construed in relation to each other so as, if possible,

to form one consistent whole.-Estate of Thompson, 493. 22. LIMITED DEVISES - CONSTRUCTION.—Where a testatrix in the first

paragraph of her will devises one-third interest in
tain real property to her brother in the event he should survive
the testatrix, and in the second paragraph thereof devises the other
two-thirds interest to her daughter should she survive the testatrix,
followed by a statement that in the event of the death of the
testatrix and the daughter the brother should have the two-third
interest and the remaining one-third should go to certain third
parties, and, after having provided for the disposition of the
residue of her estate under varying contingencies dependent upon
priority of death and for the holding of the property of the
daughter by certain designated trustees, in a seventh paragraph
provides that in the event of the death of the daughter without
issue such estate as shall remain shall be distributed to said third
parties, and the daughter survives the testatrix, such seventh para-
graph is properly construed as giving the daughter only a qualified
interest in the two-thirds interest set apart to her, amounting to
no more than a life estate, with the disposition of the estate in
remainder by devise to said third parties, and the reference in the
second paragraph of the will to the death of the daughter, in
which event the brother would have been entitled to a two-thirds
interest in the property, must be construed to mean death during

the lifetime of the testatrix.-Id. 23. LIMITATION OF GENERAL DEVISE. — Under such will, the complete

disposition of the property by the first two paragraphs thereof does not render the subsequent limitations upon the interest of tion to others in that event..-Id. 28. TRUSTS — PRECATORY WORDS — INTENT.–Precatory words are not

WILLS (Continued).

the daughter inoperative and void, as in this state a general devise may be limited by a subsequent clear disposition of a gift over the

remainder.-10. 24. DEFICIENCY — LIABILITY OF SPECIFIC LEGACY. — Upon the probate

of such will and the administration of the estate of the testatrix, the specific legacy to the brother of the testatrix should not be required to contribute to any deficiency until after the general funds bave been applied to the payment of the administra


Where & testator devised all his property (which had been acquired subsequent to his second marriage) to his

second wife, with the request that she make a will devising the property, other than so much thereof as she expended during her lifetime for her comfort, maintenance, and support, one-half thereof to her children, both by him and by her former husband, share and share alike, and the other one-half thereof to his children, both by her and by his former wife, share and share alike, but such second wife predeceased him, the testamentary disposition to her failed and the entire property was properly distributed to his heirs, to wit, his children by her and by his former wife, to the exclusion

of her children by her former marriage.—Estate of Sowash, 512. 26. WIFE AS “RELATION" — CONSTRUCTION OF SECTION 1310, CIVIL

CODE.—The wife is not a "relation" of the husband, within the meaning of section 1310 of the Civil Code, which declares that whenever any estate is devised or bequeathed to any child, or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee or

legatee would have done had he survived the testator.-Id. 27. SUBSTITUTION UPON DEATH OF DEVISEE—INTENT OF TESTATOR.

A will whereby the testator devises all his property to his wife with the request "that she make a will before, or, at least, immediately upon my death, devising and bequeathing all the prop. erty she shall receive from me or my estate upon the final distribution of my estate by final decree or otherwise other than so much thereof as shall have been expended by her and for her during her lifetime" to certain children, but wherein he makes no provision in the event that his wife predecease him, does not show any intent on the part of the testator to make a substitu

to be regarded as creating a trust unless it appear that the testator intended to impose an imperative obligation and to exclude the exercise of discretion on the part of the person to whom the recommendatory words are addressed.-Id.






WILLS (Continued).

ESTATE. The expression of the desire of the testator for the disposition of his estate is one to be considered as imperative when addressed to his executor, but a mere independent expression of desire addressed to the legatee or devisee is not to be construed as a limitation upon an estate or interest expressly vested in the legatee in ab


OF DESIRE.—The devise to the wife having been in absolute terms, such devise was not limited by the testator's expression of desire that she make certain testamentary disposition of the property, or so much thereof as remained, nor by the reason given by him


The property having been community in its character and the testamentary disposition to the wife having lapsed and failed by reason of the fact that she predeceased her husband, the estate vested in him without administration, and upon his death bis heirs were entitled to have distribution made to them in conformity

with subsection 1 of section 1386 of the Civil Code.-Id. 32. RESIDUARY BEQUEST ROMAN CATHOLIC BISHOP — APPLICA

TION OF SECTION 1313, CIVIL CODE.-A residuary bequest in a will as follows: "I give, devise and bequeath to the Roman Cath. olic Bishop of Monterey and Los Angeles, à corporation sole, all the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situated," being not limited to & specific purpose, is one for the general use and benefit of the church within said diocese, and as such it retains the character of a charitable bequest and is subject to the provisions of sec

tion 1313 of the Civil Code.—Estate of Fitzgerald, 744. 33. CHARITABLE BEQUESTS RIGHT INTEREST The limitation

contained in section 1313 of the Civil Code, wherein it is provided that the charitable devises or bequests contained in a will shall not collectively exceed one-third of the estate of the testator leaving legal heirs, applies to the principal only of such devises or legacies; and the provision of section 1369 of that code that legacies bear interest from the time when they are due is applicable both to specific charitable bequests and to a charitable bequest of the residue of an estate where such residuary bequest has, in effect, been reduced to a specific bequest by reason of the fact that the total of the charitable bequests and legacies exceeds the one-third limitation contained in section 1313 of said code.Id.

See Election, 1.


WITNESSES. See Criminal Law, 11; Promissory Notes, 2; Wills, 14.

WORDS AND PHRASES. See Statutory Construction, 1, 2.


TION.—Under the Workmen's Compensation Act, an injury suffered
by an employee in a holdup while guarding his employer's prop-
erty did not arise out of his employment, where the criminals were
after the contents of the employee's pockets, nothing more, and
when they had taken what he had they decamped.-Brydeu ».
Industrial Acc. Com., 3.

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