Estate of Stone

SHINN, Acting P. J.

Fannie Bomash, sister of Abner H. Stone, deceased, appeals from a judgment dismissing her will contest and admitting the will of said decedent to probate after a jury had rendered a special verdict that the will had not been executed by decedent before subscribing witnesses in the manner prescribed by law. Other grounds of contest were eliminated by nonsuit. The sole question on the appeal is whether there was evidence which, viewed in the light most favorable to contestant, gave substantial support to the finding of the jury against due execution.

Upon a review of the evidence we have become satisfied that the verdict was without substantial support, and that the circumstances to be hereinafter related and which are all the evidence, direct or indirect, tending to support the verdict, went no further than to justify a suspicion that the subscribing witnesses were not present when the testator signed the will and that they signed it after his death. The will admittedly was signed by the testator and the witnesses; the question as to execution was whether the witnesses had signed in the presence of the testator or after his death.

Jerome Stone, chief…

Fannie Bomash, sister of Abner H. Stone, deceased, appeals from a judgment dismissing her will contest and admitting the will of said decedent to probate after a jury had rendered a special verdict that the will had not been executed by decedent before subscribing witnesses in the manner prescribed by law. Other grounds of contest were eliminated by nonsuit. The sole question on the appeal is whether there was evidence which, viewed in the light most favorable to contestant, gave substantial support to the finding of the jury against due execution.

*265 Upon a review of the evidence we have become satisfied that the verdict was without substantial support, and that the circumstances to be hereinafter related and which are all the evidence, direct or indirect, tending to support the verdict, went no further than to justify a suspicion that the subscribing witnesses were not present when the testator signed the will and that they signed it after his death. The will admittedly was signed by the testator and the witnesses; the question as to execution was whether the witnesses had signed in the presence of the testator or after his death.

Jerome Stone, chief beneficiary and one of…

I dissent. I take my stand with the jury in this case, even though it means that, measured by the majority opinion, mine is not a reasonable mind; that I am not any more able than were the jurors to distinguish between fact and fancy.

The legal principles that govern are neither complicated nor in dispute. The order for the entry of a judgment notwithstanding the verdict should not have been granted unless there was “no evidence of sufficient substantiality to support a verdict in favor of the plaintiff” (Estate of Leahy, (1936) 5 Cal.2d 301, 303 [ 54 P.2d 704, 705 ], repeating a portion of a quotation in Estate of Lances, (1932) 216 Cal. 397, 400 [ 14 P.2d 768 ], respecting the like rule as to a directed verdict). I differ from my learned associates in that I find in the evidence substantial support for the jury’s negative answer to this question, which was given them: “Was the alleged will, Exhibit A, on February 5th, 1939, declared by Abner H. Stone to be his will to Joseph Loeb and Celia LeVee and thereupon subscribed by him and upon his request these witnesses each signed as a witness in his presence and in the presence of each other?”

The evidence to support the jury’s…