Estate of Mickley

This is an appeal from an order granting a motion for a new trial in a will contest where the jury found in favor of the proponent on the issue of incompetency. The order does not indicate that it was granted on account of the insufficiency of the testimony, and therefore under the provisions of section 657 of the Code of Civil Procedure we must indulge the presumption that the order was not based upon that ground.

The respondents direct our attention to two instructions given by the trial judge which they say were erroneously given and which justify the order appealed from. They read as follows:

There were two instruments, the one dated November 7, 1928, and being the will of decedent, and the other a codicil thereto executed November 13, 1928. They had been admitted to probate prior to the contest. By their provisions the deceased left his entire estate, with the exception of $5,000 given to contestant Miriam Mickley by the codicil, to the Fidelity-Philadelphia Trust Company, in trust for the purposes of paying the income therefrom to his widow, Wylma Mickley, for the term of her life, and upon her death the principal, together with accruing rents and profits to be paid over…