APPEAL from an order of the Superior Court of the City and County of San Francisco admitting a will to probate and from an order denying a new trial of a contest of the will. J. V. CoFey, Judge.

The facts are stated in the opinion of the count.

M. M. Estee, A. Everett Ball, and Charles A. Shurtleff, for Appellant.

The evidence establishes insane conduct and insane delusions of Mrs. Scott, amounting to monomania, and the fact that she might be otherwise of sound mind and memory cannot sustain a will in which the insane delusions were involved. (Elwell’s Medical Jurisprudence, 435; Duffield v. Morris, 2 Harr. (Del.) 375; 1 Jarman on Wills, sec. 38; Mann on Medical Jurisprudence of Insanity, 58; Brown’s Medical Jurisprudence of Insanity, 366; Lathrop v. American Board etc., 67 Barb. 593; 5 Hun, 564; Seamen’s Friend Soc. v. Hopper, 33 N. Y. 619, 624; Dew v. Clarke, 3 Add. Ecc. 79; Mill’s Appeal, 44 Conn. 484; Kimberly’s Appeal, 68 Conn. 428; 57 Am. St. Rep. 101; Thomas v. Carter, 170 Pa. St. 272, 279; 50 Am. St. Rep. 77; Haines v. Hayden, 95 Mich. 332, 354; 35 Am. St. Rep. 566; Redfield’s American Cases on Wills, 258; McElroy’s Case, 6 Watts & S. 451; Stanton v. Wetherwax, 16 Barb. 259; Mullins v. Cottrell, 41 Miss. 291; Forman’s Will, 54 Barb. 274; Commonwealth v. Rogers, 7 Met. 500; 41 Am. Dec. 458; Gass v. Gass, 3 Humph. 278; Tawney v. Long, 76 Pa. St. 106, 111; Banks v. Goodfellow, L. R. 5. Q. B. 549; Fraser v. Jennison, 42 Mich. 231.) Findings were not waived, and the omission of the court to find upon the question of the will in favor of Wealthy Wormell entitles to a new trial. (Ball v. Kehl, 95 Cal. 606; Adams v. Helbing, 107 Cal. 298.) A petition for the probate of a will is not necessary to its probate. (Estate of Howard, 22 Cal. 395.) All parties were in court when this instrument was presented, in addition to the will and codicils, and the court should have passed upon it. The expression of the wish in the instrument by the testatrix shows that it is testamentary. (Carle v. Underhill, 3 Bradf. 104; Mitchell v. Donohue, 100 Cal. 205; 38 Am. St. Rep. 279; Hunt v. Hunt, 4 N. H. 434; 17 Am. Dec. 434; Byers v. Hoppe, 61 Md. 207; 48 Am. Rep. 89.)

Philip Galpin, and A. E. Bolton, for Executors, Bespondents.

Belief based on evidence, however slight, or however illogically deduced, is not delusion. (Matter of Will of White, 121 N. Y. 414; Clapp v. Fullerton, 34 N. Y. 190; 90 Am. Dec. 681.) Unfounded suspicions, or unjust prejudices, do not prove unsoundness of mind, or invalidate a will. (In re Carpenter, 94 Cal. 418; Clapp v. Fullerton, supra; Coit v. Patchen, 77 N. Y. 537, 538; Trumbull v. Gibbons, 22 N. J. L. 117; 51 Am. Dec. 253.) The instrument expressive of a wish to give five hundred dollars to Wealthy Wormell lacks testamentary intent, and is not a will. (Clarke v. Ransom, 50 Cal. 599.) The deceased was sound enough in mind to make her will intelligently, and this- is sufficient to sustain it. (Daniel v. Daniel, 39 Pa. St. 192; Horne v. Horne, 9 Ired. 99; Kinne v. Kinne, 9 Conn. 102; 21 Am. Dec. 732; Stevens v. Vancleve, 4 Wash. C. C. 262.)

Houghton & Houghton, for Horatio Stehbins, Mortimer S. Chamberlain, and Bachael Johonnot, Bespondents.

These attorneys argued elaborately upon objections to the record upon appeal, and to the jurisdiction of the appeal. On the merits, the ease is one of conflicting evidence, and the findings cannot be disturbed. (Hayne on New Trial and Appeal, sec. 288; Hayes v. Campbell, 63 Cal. 143, 148, 149; McNear v. Bourn, 122 Cal. 621; Chico Bridge Co. v. Sacramento Transp. Co., 123 Cal. 178; Jackson v. Puget Sound Lumber Co., 123 Cal. 97; Hite v. Hite, 124 Cal. 389; 71 Am. St. Rep. 82; Capelli v. Dondero, 123 Cal. 324.) The attorney who drew the will, and the witnesses thereto, amply proved the competency of the testatrix to make the will, and were the best witnesses as to her condition at that time. (In re Redfield, 116 Cal. 637, 650-63; Clark v. Ellis, 9 Or. 128, 147; Stevens v. Vancleve, 4 Wash. C. C. 262; Chaplin on Wills, 92.) Perverse opinions, unreasonable prejudices or suspicions, and perverse conduct, do not prove mental alienation. (Seamen’s Friend Soc. v. Hopper, 33 N. Y. 624; Potter v. Jones, 20 Or. 240; Trumbull v. Gibbons, 22 N. J. L. 117; 51 Am. Dec. 253; Will of Cole, 49 Wis. 179; Will of White, 121 N. Y. 412, 414; Riggs v. American Tract Soc., 95 N. Y. 504; Addington v. Wilson, 5 Ind. 137; 61 Am. Dec. 81; Lee v. Lee’s Executor, 4 McCord, 183; 17 Am, Dec. 722; Lucas v. Parsons, 24 Ga. 640; 71 Am. Dec. 147.)