HART, J.
The contestant instituted proceedings for the revocation of the probate of the last will and testament of her son, James Daly, deceased, and, on the close of her ease, the court, on the motion of the respondent, granted a judgment of nonsuit.
This appeal is from said judgment.
The will purports to give, bequeath and devise all the testator’s estate “of every kind and character and wherever situated to my friend, Mrs. Elizabeth Wedemeyer, absolutely and forever.” Said Elizabeth Wedemeyer is named by the testator as executrix of said will, to act as such “without being required to give any bonds whatever.” The testament also authorizes the executrix “to sell, at either public or private sale, any or all of my estate without any order of court so to do and without any notice of sale. ’ ’
The grounds upon which the revocation of the order admitting said will to probate is urged are: 1. That said will was not properly or duly executed—that is, that the execution of the instrument was unattended by certain essential formalities. 2. That the execution of said will was procured solely by and through undue influence exercised by the beneficiary thereunder upon the testator at the time of the execution of the testament.
As stated, upon the close of the contestant’s case a motion by the respondent for a nonsuit was granted by the court, and the important question involved here is whether the court was justified in thus taking the ease from the jury.
“A motion for a nonsuit presents a .question of law for determination by the court. The motion is tantamount to a
demurrer to the evidence, or an objection that, admitting all the proved material facts to be true, said facts do not in legal effect operate in favor of plaintiff, or, in other words, do not entitle him to the relief asked for by him.”
(Bush
v.
Wood,
8 Cal. App. 650, [97 Pac. 710], and cases therein cited.) And the evidence, on a motion for a nonsuit on the close of plaintiff’s case, must be accorded the benefit of its full probative force, and this is true whether the evidence has been erroneously admitted or not. It is also true that on such motion the evidence must be taken most strongly against the defendant
(Goldstone
v.
Merchants’ Ice Co.,
123 Cal. 625, [56 Pac. 776]), and if the plaintiff has introduced proof sufficient to make out a
prima facie
case under the allegations of his complaint, the motion, if made on the close of his case, should be denied.
(Janin
v.
London etc. Bank,
92 Cal. 14, [27 Am. St. Rep. 82, 27 Pac. 1100, 14 L. R. A. 320];
Nonrefillable Bottle Co.
v.
Robertson,
8 Cal. App. 103, [96 Pac. 324];
Archibald’s Estate
v.
Matteson,
5 Cal. App. 441, [90 Pac. 723] ;
Bush
v.
Wood,
8 Cal. App. 650, [97 Pac. 710].)
In short, as is said in
Bush
v.
Wood,
8 Cal. App. 650, [97 Pac. 710], “it is clear that it makes no difference, where the motion for a nonsuit is made on the close of plaintiff’s case, whether the court itself believes the testimony or not, for, as is obvious, the material facts which the evidence tends to prove must be assumed to be true for the purpose of the motion, just the same as the material facts alleged in a pleading must be so treated in the consideration of a demurrer to such pleading.”
In the case of the
Estate of Arnold,
147 Cal. 583, [84 Pac. 252], speaking of a motion for a nonsuit upon the close of contestant’s ease, in a will contest, the supreme court says: “In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases. Every favorable inference fairly deducible, and every favorable presumption fairly arising, from the evidence produced must be considered as facts proved in favor of the contestants.
Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants.
(Italics ours.) All the
evidence in favor of the contestants must be taken as true, and if
contradictory evidence has been given, it must be disregarded. If there is any substantial evidence tending to prove in frnor of contestants all the facts necessary to malte out their case, they are entitled to have the case go to the jury for a verdict on the merits.”
(See, also,
Estate of Welch,
6 Cal. App. 45, [91 Pac. 336].)
Viewed by the light of the foregoing rules, by which trial courts must be controlled in deciding a motion for a nonsuit on the close of plaintiff’s case, the order allowing the motion for a nonsuit in the case at bar cannot for a moment be npheld, as we think an examination of the evidence produced by the contestant will clearly and unquestionably prove.
Of the two grounds upon which the probate of the will is sought to be revoked, the principal and most important is the charge that the alleged execution of the will was procured through the exercise of undue influence upon the testator by the respondent at the time of the execution of the instrument, to which proposition the evidence is mainly addressed.
The evidence discloses these facts: The deceased, James Daly, was a native of Ireland, and at the time of his death, in the "county of Sonoma, this state, on the twenty-fifth day of December, 1908, was of the age of about fifty-three years. He came to the United States when a young man and for several years resided' at Minneapolis, in the state of Minnesota. Residing in Ireland when first he came touthe United States were his father, mother, sisters and ibrdbhfers. After having been in the United States for about six yéars he returned to his old home in Ireland for the purpose of visiting with his mother, his father having died a short time previously. He remained in Ireland for three years and then returned to the United States, finally locating on what is known as the .Cotati Rancho, in Sonoma county, California. Here he purchased two small tracts of land and engaged in the business of raising chickens and selling eggs to the markets. According to his own opinion, as expressed to several of his neighbors (witnesses at the contest), he was suffering from catarrh of the stomach, but whatever might have been his precise physical malady, he for more than a year prior to his death continued to grow so weak in body and mind as the result of his illness that it became plainly apparent
to his near neighbors, who saw him every day or two, that he was unable to take care of himself, and that, consequently, it was absolutely necessary that he should be given attention and care by some person or persons who would be willing to thus minister to his necessities. A Mr. Tompkins, a neighbor, as well as other neighbors, frequently urged him to procure the services of someone to look after him in his illness, and he was often heard to say that he would like to have a sister living in Ireland to come to his home for that purpose.
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HART, J.
The contestant instituted proceedings for the revocation of the probate of the last will and testament of her son, James Daly, deceased, and, on the close of her ease, the court, on the motion of the respondent, granted a judgment of nonsuit.
This appeal is from said judgment.
The will purports to give, bequeath and devise all the testator’s estate “of every kind and character and wherever situated to my friend, Mrs. Elizabeth Wedemeyer, absolutely and forever.” Said Elizabeth Wedemeyer is named by the testator as executrix of said will, to act as such “without being required to give any bonds whatever.” The testament also authorizes the executrix “to sell, at either public or private sale, any or all of my estate without any order of court so to do and without any notice of sale. ’ ’
The grounds upon which the revocation of the order admitting said will to probate is urged are: 1. That said will was not properly or duly executed—that is, that the execution of the instrument was unattended by certain essential formalities. 2. That the execution of said will was procured solely by and through undue influence exercised by the beneficiary thereunder upon the testator at the time of the execution of the testament.
As stated, upon the close of the contestant’s case a motion by the respondent for a nonsuit was granted by the court, and the important question involved here is whether the court was justified in thus taking the ease from the jury.
“A motion for a nonsuit presents a .question of law for determination by the court. The motion is tantamount to a
demurrer to the evidence, or an objection that, admitting all the proved material facts to be true, said facts do not in legal effect operate in favor of plaintiff, or, in other words, do not entitle him to the relief asked for by him.”
(Bush
v.
Wood,
8 Cal. App. 650, [97 Pac. 710], and cases therein cited.) And the evidence, on a motion for a nonsuit on the close of plaintiff’s case, must be accorded the benefit of its full probative force, and this is true whether the evidence has been erroneously admitted or not. It is also true that on such motion the evidence must be taken most strongly against the defendant
(Goldstone
v.
Merchants’ Ice Co.,
123 Cal. 625, [56 Pac. 776]), and if the plaintiff has introduced proof sufficient to make out a
prima facie
case under the allegations of his complaint, the motion, if made on the close of his case, should be denied.
(Janin
v.
London etc. Bank,
92 Cal. 14, [27 Am. St. Rep. 82, 27 Pac. 1100, 14 L. R. A. 320];
Nonrefillable Bottle Co.
v.
Robertson,
8 Cal. App. 103, [96 Pac. 324];
Archibald’s Estate
v.
Matteson,
5 Cal. App. 441, [90 Pac. 723] ;
Bush
v.
Wood,
8 Cal. App. 650, [97 Pac. 710].)
In short, as is said in
Bush
v.
Wood,
8 Cal. App. 650, [97 Pac. 710], “it is clear that it makes no difference, where the motion for a nonsuit is made on the close of plaintiff’s case, whether the court itself believes the testimony or not, for, as is obvious, the material facts which the evidence tends to prove must be assumed to be true for the purpose of the motion, just the same as the material facts alleged in a pleading must be so treated in the consideration of a demurrer to such pleading.”
In the case of the
Estate of Arnold,
147 Cal. 583, [84 Pac. 252], speaking of a motion for a nonsuit upon the close of contestant’s ease, in a will contest, the supreme court says: “In determining whether or not, in a proceeding to contest a will, the evidence produced by the contestants is sufficient to require the submission of the case to the jury, the same rules apply as in civil cases. Every favorable inference fairly deducible, and every favorable presumption fairly arising, from the evidence produced must be considered as facts proved in favor of the contestants.
Where evidence is fairly susceptible of two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the contestants.
(Italics ours.) All the
evidence in favor of the contestants must be taken as true, and if
contradictory evidence has been given, it must be disregarded. If there is any substantial evidence tending to prove in frnor of contestants all the facts necessary to malte out their case, they are entitled to have the case go to the jury for a verdict on the merits.”
(See, also,
Estate of Welch,
6 Cal. App. 45, [91 Pac. 336].)
Viewed by the light of the foregoing rules, by which trial courts must be controlled in deciding a motion for a nonsuit on the close of plaintiff’s case, the order allowing the motion for a nonsuit in the case at bar cannot for a moment be npheld, as we think an examination of the evidence produced by the contestant will clearly and unquestionably prove.
Of the two grounds upon which the probate of the will is sought to be revoked, the principal and most important is the charge that the alleged execution of the will was procured through the exercise of undue influence upon the testator by the respondent at the time of the execution of the instrument, to which proposition the evidence is mainly addressed.
The evidence discloses these facts: The deceased, James Daly, was a native of Ireland, and at the time of his death, in the "county of Sonoma, this state, on the twenty-fifth day of December, 1908, was of the age of about fifty-three years. He came to the United States when a young man and for several years resided' at Minneapolis, in the state of Minnesota. Residing in Ireland when first he came touthe United States were his father, mother, sisters and ibrdbhfers. After having been in the United States for about six yéars he returned to his old home in Ireland for the purpose of visiting with his mother, his father having died a short time previously. He remained in Ireland for three years and then returned to the United States, finally locating on what is known as the .Cotati Rancho, in Sonoma county, California. Here he purchased two small tracts of land and engaged in the business of raising chickens and selling eggs to the markets. According to his own opinion, as expressed to several of his neighbors (witnesses at the contest), he was suffering from catarrh of the stomach, but whatever might have been his precise physical malady, he for more than a year prior to his death continued to grow so weak in body and mind as the result of his illness that it became plainly apparent
to his near neighbors, who saw him every day or two, that he was unable to take care of himself, and that, consequently, it was absolutely necessary that he should be given attention and care by some person or persons who would be willing to thus minister to his necessities. A Mr. Tompkins, a neighbor, as well as other neighbors, frequently urged him to procure the services of someone to look after him in his illness, and he was often heard to say that he would like to have a sister living in Ireland to come to his home for that purpose.
On the twenty-second day of December, 1908, however, said Mr. Tompkins called at the home of deceased and found him in almost a helpless condition. On that occasion Tompkins said to Daly that he (Daly) must be taken to some place where he could receive proper medical and other treatment, and deceased replied that he had made up his mind to go to the home of Mrs. Wedemeyer, a neighbor (the respondent here), where he would remain until he recovered. Tompkins thereupon promised Daly that he would return the following day and take him (Daly) to Mrs. Wedemeyer’s. On the last-mentioned day—the twenty-third day of December— Tompkins went to the home of Daly, and, placing him in a wagon, drove to Mrs. Wedemeyer’s. On arrival there, the respondent said she was perfectly willing to take care of Daly, and Tompkins helped the deceased into the house. At this time Daly had grown so weak, physically, that he was scarcely able to stand on his feet. In fact, Mrs. Wedemeyer herself testified that, on being lifted from the wagon to the ground by Tompkins, Daly sank to the ground, not being able to stand on his feet.
On the way to the home of Mrs. Wedemeyer, however, Tompkins spoke to Daly about his property affairs. The deceased said to Tompkins that he desired that the stock and poultry on his place should be given to Mrs. Wedemeyer as compensation for taking care of him in his illness, and that all other property left by him, in case of his death, he desired should be given to his “folks” in Ireland. Tompkins suggested that he ought to make a will, and Daly thereupon requested him to write one for him, proceeding at the same time to give the names and postoffice addresses in Ireland of his mother, sisters and brothers to whom it was his wish that, his estate should go. As the deceased was thus naming his
relatives, Tompkins suggested that the matter of executing a will had better be postponed until they reached the home of Mrs. Wedemeyer, as he (Tompkins) could not remember all the names and addresses as Daly was then giving them.
On reaching Mrs. Wedemeyer’s home, Daly was placed on a lounge in the kitchen of that lady’s house, and shortly thereafter Tompkins departed for home, intending to return on the next day and prepare a will for Daly in accordance with his wishes as to the testamentary disposition of his estate, as expressed by Daly on the way to Mrs. Wedemeyer’s.
On the afternoon of Wednesday, the twenty-third day of December (the same day, it will be borne in mind, on which Daly was brought to her house), Mrs. Wedemeyer went to Petaluma and interviewed Mr. Frank A. Meyer, an attorney at law and one of the counsel for respondent in this proceeding. She requested said attorney to call at her home the next day for the purpose of giving Daly legal advice with regard to the execution of a last will and testament. She testified that she called on Mr. Meyer for the purpose mentioned at the request of Daly himself.
Early on the succeeding day—December 24th—Tompkins returned to Mrs. Wedemeyer’s. The purpose of this visit was, as before suggested, to prepare a will for Daly. Tompkins found Daly still on the lounge in the kitchen. He testified that Daly kept his eyes closed all the time that he (Tompkins) was there that morning and that, concluding from appearances that Daly was unconscious at that time, he made no effort to talk to him about a will or the execution of one. Tompkins remained in the room for only a brief time, during which (he testified) Mrs. Wedemeyer gave him a glass of whisky, sweetened with honey, and also gave deceased what appeared to be the same kind of a beverage.
Shortly after Tompkins had left, Mr. Meyer and a Henry Meyerholtz arrived at the residence of Mrs. Wedemeyer. What occurred there, if anything of importance, during the stay of these gentlemen, except the fact that the deceased is purported to have made a will, to which said Meyer and Meyerholtz are subscribing witnesses, giving all his property to Mrs. Wedemeyer, is not made to appear by the record.
On the following day—Friday, the twenty-fifth day of December—Daly passed away. On the afternoon of the
succeeding day—the 26th of December—his remains were interred. On that same day, immediately following the conclusion of the ceremonies attending the interment, Mrs. Wedemeyer repaired to the office of Mr. Frank A. Meyer, the attorney who witnessed the will and evidently drew it, and there and at that time signed a document that she called “the administrator papers,” but which was, in fact, a petition for the probate of the will of Daly.
Several letters addressed to the deceased in his lifetime by his sisters and other relatives in Ireland were introduced and received in evidence. These letters were couched in terms of endearment and affection, thus indicating that the most amicable and agreeable relations existed between the deceased and his family residing in his native country.
A number of witnesses testified that Daly had often expressed the intention of leaving his property, on his death, to his mother or other relatives. There is evidence that the deceased had very slight, if any, acquaintance with Mrs. Wedemeyer, one of the witnesses testifying that the deceased declared to her, a few weeks before his death, that he had no personal acquaintance with the respondent whatsoever. It appears that a Mr. Raymond, a neighbor of deceased, had informed Daly, prior to his removal to the home of Mrs. Wedemeyer, that the latter had expressed a willingness to take care of him. That Daly had grown and was, for some time prior to his removal to the home of Mrs. Wedemeyer, greatly enfeebled in body and mind, is an inference clearly supported by the evidence. Moreover, as seen, there is evidence justifying the inference that Daly, at the time of the purported execution of the will, was in a condition, both physically and mentally, in which he could have been induced, with little persuasion, to have done almost anything that he might have been requested to do, particularly by one who had been kind and attentive to him in the last few hours of his fatal illness. In other words, it is fairly deducible from the evidence that at the time he signed the alleged will he was incapable of exercising independent judgment in any ordinary business transaction. And, not the least significant, as tending at least to excite suspicion as to her good faith in the part she took in the transaction leading to the execution of the alleged will, is the testimony of Mrs. Wedemeyer her
self. She declared that, although she signed the petition for the probate of the will, as executrix thereof, on the day of the funeral and immediately after the conclusion of that ceremony, she, nevertheless, was ignorant of the contents of the will and of the identity of the person or persons to whom the deceased had thus given his property until some time after the petition for probate had been filed, when, for the first time, she learned that she was the sole devisee through an item printed in one of the local newspapers published at Petaluma. It is hardly believable that a party who has been made the executrix of the last will of a deceased person would take the essential preliminary steps toward proving such will without an examination of the document to ascertain something of the duties, responsibilities and burdens imposed upon her by the terms' of the testament, and it appears to us that the natural effect of such testimony, considered in connection with the circumstance of the haste after the death of the alleged testator with which the document was started on its way to the probate court, would at least be to inspire great distrust in the honesty or good faith of the transaction by which the deceased was led to sign the purported will.
In short, it is very clear that the evidence produced by the contestant, and which appears in the record, fairly justifies the inference that Daly signed the alleged will, not as the result of his own volition, but solely through the influence which, by reason of his debilitated mentality, Mrs. Wedemeyer was able to exert upon him. There is certainly no ground for inferring from the evidence produced that Daly had any motive or reason for giving his property to a comparative stranger. There is, on the other hand, no apparent reason why he should have excluded his mother and brothers and sisters from his testamentary bounty. To the contrary, as seen, it would seem to be quite manifest, from the evidence, that up to the very time the deceased was taken , to the home of Mrs. Wedemeyer, his wish was that his relatives should receive his property at his death, and that his intention then was to so provide in his last will.
Without going into further detail as to the inferences that may fairly and reasonably be drawn from the evidence against the validity of the alleged will, it may be said generally that the evidence is pregnant with circumstances from which a jury
would be justified in reaching the conclusion that the purported will was not, in truth, the will of the deceased, and that, while it is clear from the evidence that he intended that Mrs. Wedemeyer should be well compensated for her services in caring for him (deceased’s statement to Tompkins that she should be given the stock and poultry on his ranch), it is equally clear that the revealed circumstances very strongly indicate that he intended that the residue of his estate should go to his relatives in Ireland.
Our conclusion is that the court should have allowed the case to have gone to the jury on its merits, and that its refusal to so submit it was clearly erroneous.
The judgment is, therefore, reversed and the cause remanded.
Chipman, P. J., and Burnett, J., concurred,
A petition for a rehearing of this cause was denied by the district court of appeal on March 10, 1911, and the following opinion then rendered thereon: