Clements v. McGinn

Citations

• 4 Cal. Unrep. 163
• 33 P. 920
• 1893 Cal. LEXIS 1041

Syllabus

<p>Will—Contest After Probate—Setting Aside in Toto.—Under Code of Civil Procedure, sections 1330, 1331, providing that, where a will is admitted to probate without contest, any person interested may within one year initiate a contest, and if it shall appear that the will is invalid, etc., the probate must be annulled and revoked, and the powers of the executor must cease, where a contest is initiated in time, and the will found invalid, it must be set aside in toto, and not left standing as to persons not joining in the contest.1</p> <p>Will—Contest After Probate—Mental Capacity.—On the contest of a will on the ground of mental incapacity, the will having been previously admitted to probate, contestants only have the burden of proving the issues raised, and an instruction that the probate of the will raises a presumption of mental capacity, which contestants must also overcome, is properly refused, as imposing an additional burden.2</p> <p>Will—Contest on Ground of Mental Incapacity.—On the contest of a will on the ground of mental incapacity, declarations of testator are admissible to explain his peculiar actions only when made at about the time of such actions, and therefore a letter by him is not admissible to explain certain conduct, where it is without date, and there is nothing to show when it was written.3</p> <p>Insanity.—The Discharge of a Person from an Insane Asylum by the resident physician and secretary, though the certificate does not state that she is restored to reason, is prima facie evidence that she is so restored, or that she was improperly committed, and is therefore a competent witness, these being the only grounds for her discharge under the statute.</p> <p>Witness—Person Committed to Insane Asylum.—Under Code of Civil Procedure, section 1880, declaring that persons “who are of unsound mind at the time of their production for examination” cannot be witnesses, the fact that a person has been committed to an asylum as insane does not render her