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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
in the case.-Id. 19. DISTRIBUTION OF PROPERTY INEQUALITY INSTRUCTIONS. – In a
will contest upon the grounds of incompetency and undue in
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
tion.--Id. 20. FALSE REPRESENTATIONS - INSTRUCTIONS.
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
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
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
tion expenses.-Id. 25. DEVISE TO WIFE_FAILURE UPON DEATH-DISTRIBUTION TO HEIRS.
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.
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
solute terms.-Id. 30. ABSOLUTE DEVISE REASONS FOR — LIMITATION EXPRESSION
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
for the devise to her.-Id. 31. LAPSE DEVISE — DISPOSITION OF COMMUNITY PROPERTY.
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.
WORKMEN'S COMPENSATION ACT.
TION.—Under the Workmen's Compensation Act, an injury suffered