Thornley

The plaintiff, as executrix of the last will of Alfreda Smith, deceased, brought this action against the defendants to recover property alleged to belong to the estate of decedent and for an accounting thereof. The defendant Nelson was not served with summons and did not appear in the action. Judgment was entered in favor of the other defendants denying plaintiff any relief. She has appealed from the judgment.

In appellant’s opening brief it is said: “Two important issues were litigated. 1. Did the defendants, or any of them, obtain any of the money" or property of Alfreda Smith during her lifetime without consideration or through fraud or undue influence? 2. Did a conspiracy exist among the defendants, or any of them, to accomplish such purpose?”

The findings of the trial court are against the plaintiff on both of these issues. The evidence is fully sufficient to support the findings in favor of the defendants Kirby and California Mortgage Company. Jones testified that there was no agreement, understanding, or concert of action between him and Nelson in connection with the acquisition of the property in question. The credibility of this testimony was exclusively for the trial…