In Re Daly

The contestant instituted proceedings for the revocation of the probate of the last will and testament of her son, James Daly, deceased, and, on the close of her ease, the court, on the motion of the respondent, granted a judgment of nonsuit.

This appeal is from said judgment.

The will purports to give, bequeath and devise all the testator’s estate “of every kind and character and wherever situated to my friend, Mrs. Elizabeth Wedemeyer, absolutely and forever.” Said Elizabeth Wedemeyer is named by the testator as executrix of said will, to act as such “without being required to give any bonds whatever.” The testament also authorizes the executrix “to sell, at either public or private sale, any or all of my estate without any order of court so to do and without any notice of sale. ’ ’

The grounds upon which the revocation of the order admitting said will to probate is urged are: 1. That said will was not properly or duly executed—that is, that the execution of the instrument was unattended by certain essential formalities. 2. That the execution of said will was procured solely by and through undue influence exercised by the beneficiary thereunder upon the testator at the time…

Counsel for respondent herein, in their petition for a rehearing, among other things, say: “Consciously or unconsciously, by the decision of this court, rendered in the above-entitled cause, the rules established by the supreme court seem to be reversed and set aside, and a new rule, not supported by any authority except this opinion, declared in place thereof.” They then cite and quote from the following cases to demonstrate how far wide of the mark our former opinion went in the enunciation of the rules governing the determination of a motion for nonsuit on the close of the case for plaintiff: In re McDevitt, 95 Cal. 33 , [ 30 Pac. 101 ] ; In re Langford, 108 Cal. 613 , [41 Pac. 701]; In re Kaufman, 117 Cal. 295 , [ 59 Am. St. Rep. 179 , 49 Pac. 192 ]; Estate of Nelson, 132 Cal. 189 , [ 64 Pac. 294 ], An examination of the foregoing cases will show that, either “consciously or unconsciously,” counsel have permitted themselves to be led into what appears to us to be an inexcusable misapprehension of the nature of the question presented by a motion for a non-suit, for, obviously, the cases cited have no more application to the question decided in this case than the code of…