Holland

While concurring in the order denying a rehearing in this case, I am unable to concur in the views of the Department holding that the question addressed to the witness upon the appearance of Holland as to his being rational or irrational was unobjectionable. At common law any one was entitled to give his opinion as to the mental condition of a party, while under the Code of Civil Procedure only intimate acquaintances are allowed to so testify. At the same time this provision should have a liberal construction, and a wide discretion as to such matters is vested in the trial court. In the present case a week’s acquaint-' anee and association of the character indicated in this record, in my opinion, furnished a foundation sufficient to support the admission in evidence of the witness’ opinion as to Holland’s mental soundness, and for this reason the evidence of which complaint was made was properly placed before the jury. . But upon any other hypothesis the question addressed to the witness, to wit, “From the appearance of Mr. Holland at that time, with reference to his being rational or irrational, what is your opinion?” is objectionable. It is held in Marceau v. Travelers’ Ins.…

This is an action to have a deed declared fraudulent and' void, and that it be set aside, annulled, and declared of no effect. Plaintiff had a decree in her favor, from which, and from an order denying a motion for a new trial, the defendant Alfred Zollner appeals.

The plaintiff and Henry Holland intermarried at the city and county of San Francisco on the sixteenth day of July, 1885, prior to which time plaintiff was a widow and the mother of four children, of whom the defendant Alfred Zollner is one. On the second day of February, 1891, Alfred Zollner obtained from Henry Holland a deed of conveyance of a lot of land on Montgomery avenue, San Francisco.

At the same date Alfred Zollner executed an agreement in writing, whereby he agreed to pay to Henry Holland, during the lifetime of the latter, the net proceeds arising from the rents and profits of the property conveyed, and, after the death of said Holland, to pay to the plaintiff herein during her natural life the sum of one hundred dollars per month.

Henry Holland died on the twenty-first day of February, 1891, leaving surviving him as his sole heir bis widow, the plaintiff herein, who was duly appointed the administratrix…

The petition for hearing in Bank is denied. Conceding that the last question asked of the witness, Mrs. French, on direct examination, and the answer given thereto, were erroneous under the decision of this court in Estate of Carpenter, 94 Cal. 406 , still, considering the cross-examination of the witness and *641 all the other evidence in the case, we do not think the error of sufficient importance to warrant a reversal of the judgment. The same may be said of the witness McKisick, and, furthermore, his testimony was not of a character to prejudice appellant.