Estate of Whitworth

This is an appeal from a judgment of nonsuit in a proceeding by which the probate of the last will of the deceased, Arthur Whitworth, was contested.

The only matter in controversy between the litigants herein relates to whether the evidence introduced on the trial of the contest was sufficient to require the submission to the jury of the question of the mental capacity of the testator to make a will.

The substance of the evidence adduced on the hearing of the contest was that the testator was “feeble minded, . . . weak minded; ... an immature individual; ... of unsound mind; . . . silly; . . . had the mentality of a boy not over ten

3. See 26 Cal. Jur. 638; 28 R. C. L. 97 (8 Perm. Supp., p. 6087). years”; he had “a silly expression on his face; acted like a half-wit”. That as a boy, although he had attended school for a period of “seven or eight terms”, he could read very little; 1 ‘ could not read very good”. He read the ‘1 Hollywood News”; could not spell and could only write his name. He would answer questions, but he could not carry on a connected conversation; “his answers would be incomplete and meaningless and vague”. He was “easily peeved, without cause”. That his hands…