fairly and unduly influenced the testatrix, and it is rightly said that suspicion is not sufficient. In fact, appellant asserts that every circumstance in the case accords with the hypothesis that the will was the free act of the mind of testatrix, and if some of the circumstances may be consistent with the theory of undue influence the view in favor of the validity of the will must prevail. (In re McDevitt, 95 Cal. 17 [30 Pac. 101].)

In reply to this challenge respondents group certain circumstances, which they claim are sufficient in their cumulative probative force to justify both findings. Of these we select only those that may have a bearing upon undue influence: 1. While Miss Ramey was at the county hospital she had five or six of these epileptic spasms or convulsions; she was sinking rapidly, both physically and mentally; was suffering from a fatal malady and at no time was entirely free from the effect of these epileptic attacks; 2. She had been through life a very economical and thrifty person and had saved an estate of the value of about $14,000; 3. After going to the Rideout Hospital, although she was ill, her life habit lingered, and, finding that she was paying $40 per week, she had herself taken to the Sutter County Hospital, where she could obtain accommodations for $30 a week; 4. From the time she entered that institution on February 19 until and including March 1, 1921, proponent called upon and conversed with her nearly every day, and brought to see her at least four or five times the attorney, M. T. Brittan, who finally drew the supposed will; 5. On February 23d she drew a check in favor of respondent for the entire amount of her deposit in the bank, and on the same day, in the presence of Brittan and proponent, she executed the general power of attorney, which was afterward acknowledged by Brittan before Waldo S. Johnson; 6. Proponent deposited the check to his own credit in the bank and immediately began drawing out the money until the bank refused to honor any of his checks; 7. Having obtained control of all her property he hunted up a home in Oakland for her, and, as respondents say, ascertaining "that he could place her there at $60 per month if she occupied a public ward and $70 in a private room and thriftily, of course, selected for her the public ward, thus saving $10 per month"; 8. Having been unable to obtain all her property through the power of attorney

and the check which she gave him he goes out with Mr. Brittan and Mr. Johnson and these three men were closeted with her for half an hour or an hour before the will was executed; thereafter Miss Ramey was exhausted and expressed regret that she had signed some papers; 9. From various circumstances respondents claim it to be a fair inference that the supposed will was prepared in the office of attorney Brittan in the city of Marysville at the request of proponent Charles E. Welsh and that Attorney Johnson was called in and the three went out to Miss Ramey with the paper already drawn; 10. Something like a year prior to March 1, 1921, Miss Ramey had declared her intention to execute a will in favor of respondent May McLaughlin.

Manifestly, as stated by this court recently in the Estate of Gallo, 61 Cal. App. 163 [214 Pac. 496], "in building up a case on circumstantial evidence it is not necessary that any single fact proved, standing alone, shall establish the issue, but it is sufficient if all the facts and circumstances given in evidence, considered together, lead to a rational inference that the ultimate fact is, as alleged." [5] Some of the facts upon which respondents rely to justify their position are indeed of slight significance, but we think it should not be held by an appellate court that the entire showing is legally insufficient to warrant the finding of undue influence. Of course, as has often been stated, each case must stand or fall upon its own peculiar facts, and precedents are valuable largely for their exposition of the ruling principles in such consideration. Appellant thinks we should follow the teaching of the Missouri supreme court in the case of Doherty v. Gilmore, 136 Mo. 414 [37 S. W. 1127], wherein it was held that "in an action to set aside a will, evidence that defendant was a member of testator's family at the time the will was drawn, and for years prior thereto; that at testator's request he went after the attorney who drew the instrument; that he and his brother and sister were the principal beneficiaries; that testator was old and infirm, and in making the will ignored to a great extent a niece who had been his constant attendant for years; and that prior to the execution of the will, defendant had drawn out, on testators' checks, all the money the latter then had in bank does not show facts from which undue influence can be reasonably inferred and submission of the issue to the jury therein is erroneous.”

No doubt that court is entitled to great respect, but it is to be observed that the decision was not unanimous, that the adverse showing was not so formidable as herein, and it is quite probable that other courts of equal learning would decide that a sufficient case was made out to submit to the jury.

On the other hand, respondents cite Estate of Snowball, supra, and Estate of Le Laveaga, 165 Cal. 607 [133 Pac. 307], to which they would now probably add Estate of Gallo, supra, as authoritative precedents for their contention. It must be admitted, however, that they involved certain facts for which there is no equivalent in the case at bar, but we think without an undue extension of the doctrine of these cases we may find therein sanction for the conclusion we have reached.

[6] But it is claimed that the foregoing questionable incidents were all explained by proponent and that his explanation should have removed any implication of unfairness. It was for the jury and the trial court, though, to say whether his explanation was satisfactory and to believe a part of his testimony while disbelieving another portion, if their conscientious judgment so directed. They had the right to consider his interest in the case and his manner on the stand, and while not permitted to act capriciously or arbitrarily, yet if they believed that proponent was not telling the truth when stating that his aunt had sent for him and that the suggestions in reference to the disposition of the property came from her, they were authorized to reject it.

Nor is it sufficient reason for us to set aside the finding because we may consider the evidence consistent with good faith on the part of proponent. If there is an intimation to that effect in any of the decisions, it is undoubtedly illadvised. The rule is, as before stated, that if a rational inference may be drawn from the evidence in favor of the finding of the jury the appellate court is bound by it, although it may believe that a contrary conclusion would have been more reasonable and satisfactory.

The other question seems less difficult of solution. It is apparent that the expression of opinion as to the competency of the testatrix by some of the witnesses for contestants is of no value by reason of their slight acquaintance with her and their infrequent opportunities to observe and converse with

her. The reasons assigned for such opinion are also inadequate, and as stated by this court in the Estate of Campbell, 46 Cal. App. 612 [189 Pac. 812]: "The opinion of a witness that a person is of unsound mind can not be stronger than, or of superior evidentiary weight to the reasons upon which he bases his opinion."

It is equally manifest that the testimony of the physicians in favor of contestants is of slight importance. It is apparent that they were very much in doubt in reference to her mental condition and their admissions were such as to deprive of any substantial probative force their expression of opinion that she was of unsound mind.

As to this issue respondents' case can be upheld only, if at all, upon the testimony of Mrs. Wilcoxson. But, as said by appellant, there is "not a word in her testimony of any insanity, delirium, loss of memory or failure to know or understand, upon the part of the testatrix, on March 1, 1921, the day the will was executed, nor at any other time, except when she may have been, as the witness claimed, in an unconscious or semi-conscious condition after one of these fits, and she certainly did not have one of these so-called fits on that day and could not have had one later than at least two days prior thereto according to the witness' own testimony. Appellant claims that the vital parts of her testimony are peculiarly "self-contradictory and inherently impossible," but granting that the jury was justified in fully crediting her statements it nevertheless is true that her opinion of mental unsoundness was based upon the reason that in consequence of the epileptic fits Miss Ramey was unconscious or semi-conscious, and that on the day in question she was not in such condition at all. Indeed, she talked with Miss Ramey on business matters on that day and she makes no claim that what was said or done or the appearance of testatrix indicated any mental infirmity. For further consideration of the legal aspect of the question involved we may refer to the Estate of Campbell, supra; Estate of Guilbert, 46 Cal. App. 55 [188 Pac. 807]; Estate of Nelson, supra; Estate of Motz, supra; Estate of Morey, 147 Cal. 495 [82 Pac. 57]; Estate of Purcell, 164 Cal. 300 [128 Pac. 932]; Estate of Packer, 164 Cal. 525 [129 Pac. 778]; Estate of Fraser, 177 Cal. 266 [170 Pac. 601]; Estate of Casarotti, 184 Cal. 73 [192 Pac. 1085].

To fortify their position as to mental incompetency respondents cite Estate of Olson, 19 Cal. App. 379 [126 Pac. 171]; Estate of Snowball, supra; Estate of De Laveaga, 165 Cal. 607 [133 Pac. 307]. The first of these treated only of the sufficiency of the pleadings and of the findings to support the judgment, the evidence not having been brought up. The Estate of Snowball involved only the issue of undue influence and the supreme court held that the evidence was sufficient to support the finding upon that question.

In the Estate of De Laveaga it was held, after an exhaustive review of the evidence, that it was sufficient to support the conclusion of the trial judge on both issues. But, as stated by the supreme court in reference to the mental competency of the testatrix: "We find portrayed a woman utterly incompetent at any time to understandingly and intelligently consider her property with a view to its proper disposition by will, and moreover utterly incompetent alone and unaided to compose and write the admirably constructed document in so far as phraseology is concerned, which was offered for probate as her last will. Contestants' evidence tended to show, among other things, that as a girl and young woman she was unable to materially progress in so far as the simplest kind of education was concerned; that her mind remained to the time of her death as that of a child, unable to comprehend anything beyond the most simple matters."

Other considerations are set forth in the opinion which added weight to the inference that the testatrix was entirely without understanding of what she was doing at the time the supposed will was executed. The foregoing statement is sufficient to show the marked distinction between that case and this.

Objections are made to the action of the trial court in overruling the demurrers to the contests, to the rulings of the court upon the admissibility of evidence and of giving and refusing certain instructions.

[7] As to the two separate written contests it is plain that they are regarded as the first pleading in the action and are subject to the same grounds of demurrer as any other complaint. (Sec. 1312, Code Civ. Proc.) Each of them is undoubtedly defective, but, as we view it, the proponent was not prejudiced by the ruling. He claims that the contest of May McLaughlin was fatally defective in its