Soberanes

As I did not participate in the decision of this cause I take occasion, in passing upon the petition for a rehearing, to state briefly the grounds upon which I concur in the judgment, and in the order denying a rehearing.

As stated in the opinion of the court, this is not a case in which the donor herself seeks to invalidate a gift. The action is prosecuted in her name by a guardian ad litem and against her wishes. If she had com *6 menced the action herself, or had consented to it, or had in any way manifested a desire to set aside her conveyance, her prayer, I think, must have been granted upon the ground that the gift was of her whole estate without any reservation or power of revocation; that it was made upon the understanding that she should be supported and cared for by her donee, and that no provision or condition for her support was contained in the grant, or in any written agreement; and for the further reason that her donee occupied towards her a relation of special trust and confidence; and that she had no independent advice.

But it appears very clearly that since she has had independent advice, and, with a clear understanding of the situation in which she is placed,…

This action was brought in the name of Isabel Soberanes by Benito Soberanes, who, for that purpose, procured himself to be appointed her guardian ad litem, to set aside a deed of conveyance of land executed by said Isabel to the defendant, Abel Soberanes, on the ground of her mental incapacity and undue in *3 finen ce of said defendant. Judgment went in the superior court for defendant, and this present appeal is from an order denying plaintiff’s motion for a new trial. There was also an appeal by plaintiff from the judgment, which was determined here in favor of defendant. (Soberanes v. Soberanes, 97 Cal. 140 .)

The findings are very full, and on the appeal from the judgment the case was considered in nearly all its aspects in the opinion delivered by Mr. Justice Paterson, the law applicable to it declared, and the conclusion reached that the findings supported the judgment. Appellant contends that, upon an appeal from an order denying a new trial, a former decision on an appeal from the judgment does not establish the law of the case; but, however that may be, we are satisfied that the views expressed in the opinion on the former appeal are correct. The only question,…