Estate of McDonnell

James McDonnell died in San Francisco on December 5, 1927. He was a resident of San Francisco and left estate there. He left him surviving as his only heirs two sisters, Ellen McDonnell and Mrs. Nora Fitzgibbon, and seven nieces and nephews, children of a deceased brother. The decedent left a will in which he named James McDonnell, one of his nephews, as executor. The nephew offered the will for probate and Mrs. Fitzgibbon, one of the sisters, filed a contest. The contest was answered and a trial was had in the trial court before the court sitting with a jury. At the end of the contestant’s case the proponent of the will made a motion for nonsuit. The motion was granted and from a judgment entered thereon the contestant has appealed. In her contest she set forth two counts. In one count she pleaded that the testator was of unsound mind, and in the other count she pleaded that the testator was acting under undue influence. A hearing was had on both counts,and we will discuss the case as made out as to each count in the order stated.

As the heirs of decedent were collateral it may not be said that the will was unnatural. (26 Cal. Jur. 697.) There was evidence that at the time the…