Jurisdiction.-District Court.-Where the contestants to the probate of the will of T. raised an issue in the probate court, among others, that T. was not of a sound and disposing mind at the time the will was made, which being certified to the district court for trial was returned to the probate court coupled with the evidence taken at the trial in the district court, but it appeared that the jury did not find upon the issue either way; whereupon the probate court, upon said evidence, assumed to determine the issue against contestants, and admitted the will to probate: Held, first, that the district court had no jurisdiction to try said issue; second, that the probate court had no authority to determine the same upon evidence which had been taken at the trial in the district court; and third, that said issue was material, and it was error to admit the will to probate without a lawful determination of the same. Estate of Tomlinson, 35 Cal. 509. Since the adoption of the constitutional amendments of 1862, district courts have no jurisdiction to try issues framed in probate courts. Section six of article six as amended, deprived district courts of said jurisdiction as conferred by said section before amendment and defined in section twenty of the probate act. Section eight of the same article, as amended, vested this jurisdiction exclusively in probate courts. Ibid. Since said constitutional amendments, the provisions of section twenty of the probate act-conferring probate jurisdiction on district courts have become repugnant to the constitution, and void. Ibid. Since the adoption of the constitutional amendments of 1862, district courts have no jurisdiction to try issues framed in probate courts; and sections twenty and two hundred and ninety four of the probate act have become inoperative. Est. of Tomlinson, 35 Cal. 509. New trial. A new trial may be granted by the district court of issues determined therein, which have been framed in a probate court, and an appeal from an order granting or refusing the same lies to the supreme court. Will of Bowen, 34 Cal. 682. Parol testimony.—Under the provisions of section 17, of the "Act concerning Wills," parol evidence is not admissible to show that a testator, who by his will devised his whole estate to his wife, without mentioning his children therein, intentionally omitted to make any provision for his children, but to render an exclusion of the latter effectual, the evidence that the testator intended to do so must be furnished by the will itself. Estate of Garraud, 35 Cal. 336. the jury. SEC. 1314. ( 20, 23.) The jury, after hearing the Verdict of case, must return a special verdict upon the issues submitted to them by the court; upon which the judgment of the Judgment. court must be rendered, either admitting the will to probate or rejecting it. In either case, the proofs of the subscribing witnesses must be reduced to writing. If the will is admitted to probate the judgment, will and proofs must be recorded. Statutes of 1851, p. 450, §§ 20, 23. 1861, p. 630, § 9. See Dobke v. Munro, 1 Redf. Sur. Rep. 486, cited under sec. 1,307 ante. Witnesses, who and Competency of witness.-On the trial of an issue of fact involving the validity of a will, a subscribing witness thereto is not rendered incompetent as a witness by holding lands devised therein in trust for a devisee, and without having any interest himself therein. Peralta v. Castro, 6 Cal. 354. Judgment, when conclusive.-It is not necessary to the validity of a probate that a formal judgment or decree that the will is admitted to probate or is proved, should be entered; a direct statement that the will is proved, although entered in the minutes as part of and preliminary to an order directing letters to issue is sufficient. In re Will of Warfield, 22 Cal. 51. The probate of a will, until revoked, is conclusive of its validity in all collateral proceedings; and its rejection by the probate court is also conclusive of its invalidity. Castro v. Richardson, 18 Cal. 478; State v. McGlynn, 20 Cal. 233. A judgment admitting a will to probate, made upon a petition stating all the necessary facts, and after the publication of due and legal notice of the application for probate, is conclusive of the validity of the will when called in question in any collateral proceeding or action. Rogers v. King, 22 Cal. 71. If a will be properly proved, it is the duty of the surrogate to admit it to probate, without inquiring as to its effect or construction except so far as may be necessary to determine which is the last will, when there are several instruments inconsistent with each other. Van Wert v. Benedict, 1 Brad. 114. Though there can be but one last will, yet several papers, taken together, may constitute the last will. Ibid. Appeal. An order of a probate court setting aside a judgment of that court refusing to admit a will to probate, is not an appealable order because not within the above section. Peralta v. Castro, 15 Cal. 511. If the probate court refuses to admit a will to probate, and this court on appeal directs the will to be so admitted, it will not direct the probate court to issue letters of administration with the will annexed, to the petitioner, unless the probate court has found, as a fact, that the petitioner is a proper person to receive letters. Est. of Wood, 36 Cal. 75. Codicil. When on the probate of a will, an alleged codicil is brought in by parties interested, but not cited, the proper course is to direct them to file an allegation propounding it for proof as part of the pending proceedings. Carle v. Underhill, 3 Brad. 101. And where a testator desired to make a codicil to his will in favor of his daughter, and his son, who had custody of the will and in whose favor it was made, refused to produce the will at the request of the testator for the purpose of alteration: Held, that the will was not thereby rendered invalid. Leaycraft v. Simmons, 3 Bradf. 35. Revocation. The prevention of the execution of a codicil by improper means, cannot operate to invalidate the will. A will can only be revoked in the manner and form prescribed by statute. Ibid. Whether a paper is a will or not, does not depend upon the maker declaring it to be a will, but upon its contents. Carle v. Underhill, 3 Brad. 101. Authority of executor.-An executor has no authority until the will is proved. Tucker v. Starks, Brayt. 99. SEC. 1315. (?? 21, 22.) If the will is contested, all the how many subscribing witnesses who are present in the county, and to be examined. who are of sound mind, must be produced and examined, and the death, absence or insanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the county at the time appointed for proving the will, the court may admit the testimony of other witnesses to prove the sanity of the testator, and the execution of the will; and as evidence of the execution, it Proof of may admit proof of the handwriting of the testator, and of ing admitthe subscribing witnesses, or any of them. (a) Statutes of 1851, p. 450, §§ 21, 22. See authorities under section 1308 ante; see also authorities under section 1276, p.-- post. Subscription by mark.-Where the testator has not subscribed his name to the will, but merely made a mark, it is a sufficient subscription, and the testimony of the subscribing witnesses regarding the proper execution of the will may be taken, but no proof of the handwriting of the testator is admissible. Will of Walsh, 1 Tucker's Sur. Rep. 132. A mark made by a testator while another person assisted in guiding his hand: Held, a sufficient subscription. Will of Van Hanswyck, 44 Barb. 494. Witnesses.—The evidence only of such witnesses as are acquainted with the handwriting of the decedent can be received, as to whether the paper propounded, or its subscription, are in decedent's handwriting. Ibid. Witnesses may be examined on probate proceedings as to the general handwriting and subscription of a former will already admitted to probate, and made an exhibit in a proceeding to prove a testamentary paper of later date, and may compare such handwriting or subscription with those of the paper propounded, and testify as to their judgment therefrom. Other papers not in the case cannot be compared by witnesses. Ibid. Comparison being a question of fact, the evidence of experts not acquainted with the handwriting of decedent is not competent. The surrogate will make the comparison with the aid only of witnesses so acquainted with the handwriting. Ibid. Photographs of last wills and testaments not admitted as evidence. Ibid. If the will is attested by strangers, evidence of the signature and handwriting of the testator may be resorted to for the purpose of showing his identity with the party executing the will. Mowry v. Silbur, 2 Brad. 133. (a.) NOTE.-SEC. 1969. (Code of Civil Procedure.) A last will and testament, except when made by a soldier in actual military service, or by a mariner at sea, is invalid, unless it be in writing, and executed with such formalities as are required by law. Evidence, therefore, of such will, cannot be received without the written instrument itself or secondary evidence of its contents in the cases prescribed by law. SEC. 1970. A written will cannot be revoked or altered otherwise than by another written will, or another writing of the testator, declaring such revocation or alteration, and executed with the same formalities required by law for the will itself; or unless the will be burned, torn, cancelled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person. the direction and consent of the testator, and the fact of such injury or destruction must be proved by at least two witnesses. handwrit ted when. Execution, what.-It is not necessary that a testator should have touched the paper of the will with his own hand, or with the point of his pen, if the subscription of his name thereto be 'adopted by his acknowledgment and declaration. Will of Merchant, 1 Tucker's Sur. Rep. 51. Subscribing witnesses.-Where the testamentary declaration and the request to the subscribing witness to attest the instrument were made by means of questions put by the counsel attending the execution of the will, and the affirmative response of the testator: Held, that the forms prescribed by the statute were satisfactorily complied with. Tunison v. Tunison, 4 Brad. 138. If the subscribing witnesses have lost all recollection of the execution of the will, yet if the court be satisfied by other evidence that they witnessed the execution of the will, it may be admitted to probate. The same rules of evidence apply to the proof of wills as in other judicial investigations; and the making of the will "may be proved in the very teeth of the subscribing witnesses," who may be contradicted in like manner as other witnesses, Having obtained jurisdiction, the surrogate must dispose of the matter according to the established rules of evidence. Peebles v Case, 2 Brad. 226. When the subscribing witnesses corruptly deny the execution, and a fortiori, when they are mistaken, the proof of the will may be supplied from other sources. The question for the court is the factum of the instrument, and that may be proved in the very teeth of the subscribing witnesses. Ibid. A person named in the will as the executor, and who is also a subscribing witness, may be examined as a witness on the probate. Will of Amelia Levy, 1 Tucker's Sur. Report, 87. Contradictory evidence being given by the witnesses to a paper propounded as a will, and one of them, a counselor-at-law swearing that all the formalities were observed, and the two others, ladies, not remembering a portion of the proceedings: Held, that the professional evidence was most reliable, and the presumption was in favor of the due execution. Will of Humphreys, 1 Tucker's Sur. Report, 142. Where the witnesses to a will swore, on their direct examination to the contents of a printed deposition which set forth the observance of all the necessary legal formalities in the execution of a will, and on their crossexamination, on question and answer, swore that these formalities were not observed; probate was denied. The witnesses not being professional men of the law, and not having consulted the statute, no presumption of the observance of the necessary formalities obtained. Will of James G. Smith, 1 Tucker's Sur. Rep. 227. It is not necessary that both witnesses should prove that the provisions of the statute as to the mode of execution were complied with. Where one witness testified clearly to their performance, and the recollection of the other was vague and indistinct: Held, that the proof of execution was sufficient. Weir v. Fitzgerald, 2 Brad. 42, The words, "will you witness my will ?" or I want you to witness my will," addressed by the decedent to, and heard by, both subscribing witnesses, constitute a sufficient acknowledgment, declaration (and rogation. Will of Harder, 1 Tucker's Sur. Rep. 426. Probate denied where one subscribing witness swore he was not informed that the paper was the will of the decedent, and the other swore that she did not recollect what was said, but that she was satisfied at the time that she Will was witnessing a will. Held, no declaration or publication as a will. Capacity.-Proof of incapacity from attacks of delirium tremens receives additional effect from the circumstances, being an unequal one. Waters v. Cullen, 2 Brad. 226. Besides being satisfied of actual capacity, the probate court must determine whether, in performing the peculiar act in question, the testator understood the contents and effect of the instrument. Burger v. Hill, 1 Bradf. 360. reduced to future evi SEC. 1316. (8 23.) The testimony of each witness, re- Testimony duced to writing and signed by him, shall be good evidence writing for in any subsequent contests concerning the validity of the dence. will, or the sufficiency of the proof thereof, if the witness be dead or has permanently removed from this state. Statutes of 1851, p. 450. § 23. certificate to SEC. 1317. (8 24.) If the court is satisfied, upon the If proved, proof taken or from the facts found by the jury, that the be attached. will was duly executed, and that the testator at the time of its execution was of sound and disposing mind, and not acting under duress, menace, fraud, or undue influence, a certificate of the proof and the facts found, signed by the probate judge and attested by the seal of the court, must be attached to the will. Statutes of 1850, p. 378; 1851. p. 450, § 24; 1855, p. 132, § 2. See Estate of Tomlinson, 35 Cal. 509, under section 1313, ante. Infirmity of testator.-In case of great physical infirmities something more than mere formal proof should be required. Additional evidence to show that the mind accompanied the will, and that its provisions were understood, is necessary. This may be supplied by subscribing witnesses or aliunde. Weir v. Fitzgerald, 2 Brad. 42. Defects of the senses do not incapacitate; but, it appearing that the testator being of advanced age, and his hearing and sight impaired, the circumstances attending the execution of the will should be carefully scrutinized for any traces of imposition or artifice. Ibid.. And see Mowry v. Silbur, 2 Brad. 133; McSorley v. McSorley, 2 Brad. 188; and McGuire v. Kerr, 2 Brad. 244. Undue influence.-It seems to be the result of the cases, that the influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment, it must not be the mere desire of gratifying the wishes of another, for that would be very strong ground in support of a testamentary act. Further, there must be proof that he act was obtained by this coercion, by importunity which could not be re |