Estate of Kilborn

This is an appeal from an order revoking the probate of an alleged will of Julia Ann Kilborn, deceased, and the letters testamentary thereon, issued to Will D. Gould, who was named in the will as executor. Gould appeals as executor and also in his own right. The appellant relies solely on matters appearing on the face of the record, the evidence and proceedings on the trial not being presented.

The petition to revoke the probate alleged that at the time of the execution of the will the said Julia Ann Kilborn was not of sound mind, that it was not executed in the manner prescribed by law and that it was procured by the fraud and undue influence of Will D. Gould and Mrs. O. F. Sawyer, one of the subscribing witnesses thereto. The cause was tried by a jury and a verdict returned to the effect that the execution of the will was obtained by the exercise of undue influence by Mr. Gould and Mrs. Sawyer, acting jointly.

The first point urged by the appellant is that the court erred in overruling his demurrer to the petition to revoke. The demurrer is based in part upon the ground that the petition is uncertain in that it does not set forth any facts showing that the testator was not of…