In re Estate of McDevitt

Citations

• 95 Cal. 17
• 30 P. 101
• 1892 Cal. LEXIS 781

Syllabus

<p>Contest of Will — Undue Influence — Pleading — Acts Prior to Will — Importunities of Residuary Legatee. —A contest of a will on the ground of undue influence, which alleges acts of undue influence, and importunity continued for a long time prior to the making of the will, sufficiently connects the alleged undue influence with the testamentary act, by alleging that at the date of the will, and while in an enfeebled condition of mind and body, and unable to resist the importunities of' one of the residuary legatees, deceased made his mark to said pretended will.</p> <p>Id.—Verdict of Undue Influence — New Trial.—Evidence Insufficient in Law. — Where the evidence is insufficient, as matter of law, to justify a verdict, or decision that a will was executed under undue influence, it is ground for a new trial. The evidence in this case reviewed, and held insufficient in law to sustain such a verdict.</p> <p>Id. — Evidence — Declarations of Testator — Testamentary Intentions — Res Gestie—Weight of Evidence.—Expressions of the deceased as to his testamentary intentions, though admissible to prove a friendly feeling toward the persons in regard to whom they are used, yet do not 'tend to prove that a will conforming to such expressions was procured through undue influence, unless made so near the time of the execution of the will as to constitute a part of the res gestae; and where the testator is beyond question of sound mind, they are entitled to no weight at all, in the absence of proof of influence as to the very testamentary act.</p> <p>Id.—Fairness of Testamentary Disposition — Division of Property among Nephews and Nieces. —Not to divide the property of a testator</p> <p>■ equally among nephews and nieces does not make his will undutiful or inequitable. An uncle is under no obligation, ordinarily, to provide for his nephews, either when living or by his will.</p> <p>Id. — Judicious Disposition. — A testator of sound mind has a right to make an unjust, unreasonable,