Booth v. Floyd ( 1921 )

Fish, C. J.

(After stating the foregoing facts.)

1. Even if the fourth ground of the motion for new trial was good as to form, a careful examination of the evidence in the record clearly shows that the court did not err in excluding from the jury the issue as to undue influence alleged to have been brought to bear upon the testatrix and causing her to execute the will. There was no evidence submitted that would authorize the jury to find in favor of the contention of the objectors that the will was executed by reason of undue influence.

■2. In excluding the objection of undue influence for lack of evidence to support it, the court used this language: “You will limit your investigation to objections that the will was not executed in the manner- prescribed by law, and that Mrs. Harris, at the time she made the will, did not have sufficient mind to make the will.” In the fifth ground of the motion it is complained “ that the use of the words, ‘ at the time she made the will,’ was an undue expression of opinion to the jury on the execution of the will, and had a tendency to' cause the jury to believe that the court considered that the will was properly executed.” The point here raised is not meritorious. There is no evidence in the record which would have authorized the jury to find that the paper was not executed according to the formalities prescribed by the statute in this State (Civil Code (1910), § 3846) for the execution of wills. The uncontradicted evidence showed that Mrs. Harris signed the writing as her will, and that it was attested and subscribed in her presence by three competent witnesses. It follows that even if the language used by the court was inapt, it was not cause for a new trial.

Nor did the instruction here excepted to tend to exclude from the consideration of the jury all evidence of the condition of the mind of Mrs. Harris when the paper was executed.

3. The court did not err in refusing to permit to be read to the jury the “ depositions ” of certain witnesses referred to in the sixth ground of the motion, as to the reputation that Mrs. Harris was addicted to a drug habit. Such depositions were inadmissible as being hearsay, if for no other reason.

4. While there was evidence tending to show that Mrs. Harris “ was not of sound and disposing mind and memory,” at the time the will was executed, there was abundant evidence to the contrary, and the fact in that respect was for the jury’s decision; and the court did not err in refusing to set aside their verdict in favor of the propounder.

Judgment affirmed.

All the Justices concur.