This is an appeal from a judgment denying admission to probate of the will of May Louise Grant in accordance with the verdict of a jury finding her to have been of unsound mind at the time of its execution, from an order denying proponent’s motion for judgment notwithstanding the verdict and from an order granting a new trial upon the issues of fraud and undue influence, verdicts upon the latter issues having been at the trial directed by the court in favor of proponent.

The testatrix died on November 23, 1930, at the age of sixty-nine years leaving an estate of the estimated value of between three and five hundred thousand' dollars consisting, in- the main, of the family home in Santa Cruz County and an interest in the Florists Review Publishing Company which produced an income of over twenty thousand dollars annually. She left surviving her four daughters, all adults, Mrs. Maude E. Jaeger, the two contestants, Mrs. Alda Rose Graham and Mrs. Bessie May Olive, and the proponent and appellant Mrs. Helene Grant Thornewill.

By the terms of the will, which was executed on the eighteenth day of February, 1927, the proponent, who is the youngest of the daughters, is made the sole beneficiary. Mrs. Graham and Mrs. Olive contest the probate of the will upon the grounds of unsoundness of mind, fraud and undue influ ence. The eldest daughter, Mrs. Jaeger, refused to join in the contest and at the trial testified in favor of proponent. The single question presented upon this appeal is the sufficiency of the evidence to justify the verdict of the jury finding the testatrix to have been of unsound mind and the order of the trial court granting a new trial upon the issues of fraud and undue influence.

In the year 1902 the decedent, with her husband and children, moved to the county of Santa Cruz from the city of Chicago, Illinois, where Mr. Grant had founded the publishing company which continued to so bountifully provide for his family. Mr. Grant died testate in the year 1913 leaving one-half of his estate to his widow and the remainder in equal shares to his four daughters and a son who later died. Decedent continued to live at the family home near Santa Cruz until her death, except for brief intervals living alone with the proponent, who was her constant companion. Although the evidence discloses the natural relationship of mother and daughter existing as to the eldest and youngest daughters, the two contestants were apparently neither close. 1o nor at times upon friendly terms with decedent. Although the contestant Mrs. Olive resided in the city of Santa Cruz she saw her mother but seldom and could not say definitely whether she had seen her within a year prior to the execution of the will. The contestant Mrs. Graham saw her mother on but three occasions in the last fifteen years of her life.

It is the contention of contestants that this strained relationship was due to a cúmplete change in the personality of decedent commencing at about the time of her husband’s death in 1913, due to a mental disturbance occasioned by her period of menopause, as a result of which she changed from a sedate and conventional matron and devoted mother to a giddy, pleasure-loving, man-struck woman and a cold and indifferent mother incapable of appreciating her relationship to her children and the nature of their claims upon her bounty.

Although the two contestants, one other lay witness and a medical expert, Dr. Joseph Catton, expressed the opinion that decedent was of unsound mind, no substantial reason in support thereof'was given. In the hypothetical question asked of Dr. Catton, and upon which his testimony was alone based, is summarized all of the testimony offered in sup port of the claim of decedent’s unsoundness of mind. In order that the character of evidence relied upon may be illustrated, we therefore quote it in full:

Without here discussing the evidence offered by proponent, most of which was uncontradicted and unimpeaehed, in explanation of the various incidents referred to, it is sufficient to say that the foregoing facts, even if all are considered to be proven, fall far short of evidencing a lack of testamentary capacity. Although they might indicate from a purely medical standpoint some, as expressed by the medical expert, “involutional psychosis”, it is not every mental departure from the normal that will destroy testamentary disposition. (Estate of Chevallier, 159 Cal. 161 [ 113 Pac. 130 ].)

Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) insanity of such broad character as to establish mental ineompetency generally, or (2) some specific and narrower form of insanity under which the testator is the victim of some hallucination or delusion (Estate of Chevallier, supra; Estate of Collins, 174 Cal. 663 [ 164 Pac. 1110 ]; Estate of Redfield, 116 Cal. 637 [ 48 Pac. 794 ]; Estate of Casarotti, 184 Cal. 73 [ 192 Pac. 1085 ]; Estate of Finkler, 3 Cal. (2d) 584 [ 46 Pac. (2d) 149 ]). A testator is of sound and disposing mind and memory, if, at the time of making his will, he has sufficient mental capacity to be able to understand the nature of the act he is doing, and to understand and recollect the nature and situation of his property and to remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument. (Estate of Smith, 200 Cal. 152 [ 252 Pac. 325 ]; Estate of Sexton, 199 Cal. 759 [ 251 Pac. 778 ].) We think it apparent that the character of evidence relied upon by contestants does not meet the above tests of testamentary capacity. Fifty witnesses, both those who knew deceased socially and had transacted business with her, testified as to her sanity and as to the normalcy of her conduct and habits and ability to understand and transact affairs of business. That deceased possessed sufficient mental capacity to make testamentary disposition of her property is affirmatively shown by the evidence not only of proponent but also of contestants. Even from the testimony of the latter can be drawn no inference but that decedent understood the nature and extent of her property and her relationship to all of her children.

Nor is there any evidence tending to show the perpetration of fraud or The exercise of undue influence on the part of proponent in procuring the execution of the will. Although a close and confidential relationship existed between decedent and proponent and the latter advised and counseled her mother in business affairs and wrote checks for her signature, there is no indication of any undue advantage having been taken of this natural relationship of mother and daughter. Nor is there any substantial evidence of the testamentary act of decedent having been affected by any attempt upon the part of proponent to prejudice her mother against the contestants. Although apparently the lack of sisterly devotion existing between proponent and the two contestants was at times made known to decedent by the former there is no showing that her testamentary act was in any way affected thereby. The isolated statements of proponent to decedent in the presence of and referring to one or the other of contestants such as “She isn’t any good to herself or anyone else—she doesn’t care anything about you nor any one— she is just after your money—just what she can get out of you”, fall far short of showing such a continued and successful effort on the part of proponent to prejudice and influence her mother against -contestants as is referred to in the case of Estate of Newhall, 190 Cal. 709 [ 214 Pac. 231 , 28 A. L. R. 778],

In the year 1923, a similar will in which proponent was made the sole beneficiary was executed by decedent. Shortly thereafter decedent discussed the execution and terms of this will with one of the contestants saying “I had to do it.” No indication was given, however, that she was influenced or required to make such will by any act or conduct of proponent. Although at the time of the execution of the present will proponent accompanied decedent to the office of the attorney who drafted it and who had previously acted as attorney for both decedent and proponent, and upon the next day proponent drove decedent to the office but did not accompany her out of the automobile while she executed the will in the office and in the presence of the president of the Santa Cruz Land Title Company, no inference can be found therefrom that proponent influenced its execution or the terms thereof. About six months after the execution of the will decedent called at the office of her attorney and left with him a letter in her own handwriting in which she stated in substance that she omitted to make provision for either of the contestants because of the heartaches that they had caused her and stating “unnatural deeds create unnatural feelings”. She also left enclosed in the letter complaining and fault-finding letters written to her by each of the contestants.

The rule is, as recently stated in Estate of Finkler, supra, quoting from Estate of Hamburger, 126 Cal. App. 455 [ 14 Pac. (2d) 802 ], “Proof, to establish undue influence, must be had of a pressure which overpowers the mind and bears down the volition of the testator at the time the will is made. It consists in the exercise of acts or conduct by which the mind of the testator is subjugated to the will of the person operating upon it (Estate of Holloway, 195 Cal. 711 [ 235 Pac. 1012 ]; Estate of Anderson, 185 Cal. 700 [ 198 Pac. 407 ]). Mere proof of opportunity to influence a testator’s mind, even when coupled with an interest or motive to do so, will not sustain a finding of undue influence in the absence of testimony showing that there was a pressure operating directly on the testamentary act and to such an extent as to affect the terms of the testament (Estate of Fleming, 199 Cal. 750 [ 251 Pac. 637 ]; Estate of Bryson, 191 Cal. 521 [ 217 Pac. 525 ]). It is not sufficient for a contestant merely to prove circumstances consistent with the exercise of undue influence, but, before a will can be overthrown, the circumstances proved must be inconsistent with voluntary action on the part of the testator. (Estate of Morcel, 162 Cal. 188 [ 121 Pac. 733 ].)” Although the testimony in the present ease might be said to show circumstances consistent with the exercise of undue influence, it utterly fails to show the exercise of such influence or the lack of voluntary action on the part of the testatrix.

We conclude, therefore, that there being an insufficiency of evidence to justify the verdict of the jury upon the issue of unsoundness of mind, the motion of proponent for judgment notwithstanding the verdict should have been granted. Likewise, there being a failure of proof upon the issues of fraud and undue influence, the trial court properly directed verdicts in favor of proponent upon those issues and erred in subsequently granting a new trial thereon.

We see no gainful purpose in ordering a new trial upon any of the issues here involved. Contestants have apparently already presented their complete case, which falls far short of being sufficient to justify the exclusion from probate of decedent’s will. The judgment and the order granting a new trial are reversed with directions to the trial court to enter judgment admitting the will to probate.

Tyler, P. J., and Cashin, J., concurred.

A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 29, 1935.