This is an appeal from a judgment refusing to revoke the probate of the will of Isabella Jacobs, deceased. Her only surviving heirs at law are two nephews, one of whom is the contestant R. N. Conn. V. 0. Waldeck, Margarete K. Waldeck, his wife, and Pearl Gotham are the legatees named in a will of deceased executed on August 5, 1935, and the San Diego Trust and Savings Bank is the executor. None of the legatees was related by blood to Mrs. Jacobs.

Mrs. Jacobs was about eighty-three years of age at the time she executed the will. She had suffered a hemorrhage of the brain about five years before and another slight one on August 1, 1935. On August 5, 1935, she was ill in bed but seemed to be mentally alert and in possession of her mental faculties.

The second amended petition to revoke the probate of the will alleged three grounds of contest: (1) mental incapacity; (2) undue influence of V. 0. Waldeck; (3) failure to observe the required formalities in the execution of the will.

The evidence of the mental testamentary capacity of Mrs. Jacobs was so complete and convincing that contestant aban doned it as a ground of contest at the trial and does not raise it here.

Evidence of undue influence on the part of V. 0. Waldeck or any other person is entirely lacking. This is tacitly admitted by contestant, who is driven to rely upon the inference of undue influence which may be drawn from the following: An unnatural or unjust will, and a confidential relationship between the testatrix and a beneficiary who actively participated in the preparation of the will through which he unjustly benefited.

It does not necessarily appear from the evidence that the will was either unnatural or unjust. Nephews are not necessarily the natural objects of the bounty of an aunt. While the beneficiaries were not related by blood to Mrs. Jacobs, they were her friends. They were kind to her and assisted and cared for her at the close of her life. Mrs. Gotham voluntarily acted as one of her nurses during her last illness. There is no showing of any friendly relationship existing between either of the nephews and Mrs. Jacobs. As far as the record discloses she might never have known of their existence.

A similar question was before the court in Estate of Easton, 140 Cal. App. 367 , where at page 376 [ 35 Pac. (2d) 614 ], it was said:

If we assume, without holding, that the beneficiaries under the will occupied a position of confidential relationship to Mrs. Jacobs, still, under the circumstances before us, contestant would not be relieved of the burden of proving undue influence by a preponderance of the evidence. (Estate of Presho, 196 Cal. 639 [ 238 Pac. 944 ]; Estate of Shay, 196 Cal. 355 [ 237 Pac. 1079 ] ; Estate of Ross, 117 Cal. App. 574 [ 4 Pac. (2d) 164 ].)

The will was not necessarily either unjust nor unnatural. None of the beneficiaries knew that Mrs. Jacobs was about to execute a will prior to the time she announced such an intention a few minutes before Dr. Crawford was called to write it. In calling Dr. Crawford, one of the proponents merely transmitted a message given by Mrs. Jacobs. The will was dictated by the testatrix1 to Dr. Crawford, who reduced the dictation to writing. Mrs. Jacobs fully understood the bequests which she made. She selected her beneficiaries. She was satisfied with the will she dictated. While the beneficiaries were in the room during the time the will was being dictated, written and executed, they were not there as actors but as passive observers. They were present because Mrs. Jacobs wanted them there. Simply because they were present at the invitation of the testatrix at that time is not sufficient to establish undue influence. The evidence not only fails to show any undue influence on the part of Waldeck or any other person, it negatives any idea of undue influence. (Estate of Ross, supra.)

Contestant maintains that the evidence fails to show due execution of the will in the following particulars: (1) that the testatrix did not subscribe the will or acknowledge its subscription in the presence of both attesting witnesses; (2) that the testatrix did not declare to the witnesses that it was her will; (3) that the subscribing witnesses did not sign the will at the request of testatrix and in her presence. (Subds. 2, 3, and 4, sec. 50, Probate Code.)

The evidence favorable to proponents, which is all we need consider here as it was adopted by the trial judge as true, may be summarized as follows: that on the evening of August 5, 1935, Pearl Gotham was caring for Mrs. Jacobs pending the arrival of the regular nurse; that Mrs. Jacobs said she wanted to make her will and asked that Dr. Crawford, her physician, be called to write the will; that she was told of the necessity for witnesses; that when witnesses were discussed one of the proponents said, “We might get Mr. Dixon, will that be all right?”, to which Mrs. Jacobs replied, “Yes, that will be all right;” that Mr. Dixon, a neighbor, was called. Mr. Dixon described the events as follows:

Contestant does not contend that Mrs. Jacobs signed the will out of the presence of Dr. Crawford, one of the subscribing witnesses. Dr. Crawford wrote the will and testified that she dictated it to him; that he read it over to her after it was reduced to writing; that she said, “Yes.” “Thank you.” Both subscribing witnesses testified the will was signed by Mrs. Jacobs in their presence.

Evidence weaker than that which we have here has been held to constitute (1) a sufficient publication of a will by the testatrix; (2) a sufficient request to the witnesses to subscribe their names to the will as witnesses, and (3) a sufficient subscription of the will by the witnesses in the presence of the testatrix. (Estate of Silva, 169 Cal. 116 [ 145 Pac. 1015 ]; Estate of Cullberg, 169 Cal. 365 [ 146 Pac. 888 ]; Estate of Dow, 181 Cal. 106 [ 183 Pac. 794 ]; Estate of Offill, 96 Cal. App. 640 [ 274 Pac. 623 ] ; Estate of Miner, 105 Cal. App. 593 [ 288 Pac. 120 ].)

There is some conflict in the evidence caused by the testimony of the beneficiaries of the will who placed Mr. Dixon on a screen porch looking into the bedroom where Mrs. Jacobs lay while she was giving directions for the terms of her will, while Dr. Crawford was writing it and while he was reading it for the first time, and when it was subscribed. According to these witnesses the bedroom was small and Mr. Dixon was but a few feet from Mrs. Jacobs during this time and within sight and hearing of her. This does not create a substantial conflict in the evidence that could affect the results, as under the holding in Estate of Miner, supra, he was then in her presence.

Assuming that this evidence did create a substantial conflict, the trial judge was not bound to accept the testimony of the beneficiaries as true and disregard the evidence of Mr. Dixon, as the proponents were only giving a narrative account of the events as they remembered them. A similar contention was made in the case of Johnson v. Johnson, 137 Cal. App. 701 [ 31 Pac. (2d) 237 ], where it was said:

The proponents of the will urge other reasons why the judgment must be affirmed. In view of what we have already said it is unneccessary to consider them.

The attempted appeal from the order denying the motion for a new trial is dismissed. The judgment is affirmed. Respondents will recover their costs of appeal.

Barnard, P. J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 31, 1938.