INSTRUCTIONS OP THE COURT.

:Allowed and Given on the Part of Respondents.

I. All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property.

All property owned by the husband before marriage, and that acquired afterward by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.

All other property acquired after marriage by either husband or wife, or both, is community property.

II. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and, in the absence of such disposition, goes to his descendants equally, if such descendants are in the same degree of kindred to the decedent.

III. Every person over the age of eighteen years, of sound mind, may by last will dispose of all his estate, real and *42 personal; and snch estate, not disposed of by will, is succeeded to, if it be community property, in the manner described in the instructions last above given—that is to say: Upon the death of the husband, one-half of the community property goes to the surviving wife; and, if there be no testamentary disposition by the husband of the other half, such half goes to his children, if there are any, in equal shares.

Prom this you will see that every person over the age of eighteen years, of sound mind, is given the right to elect and determine whether he will allow his estate to go to his descendants in equal shares, as provided by law, or whether he will prevent such descent and succession and dispose [of it] by will. Every person has the right, by his last will and testament, to bestow his property on whomsoever he pleases; and his children cannot prevent such disposition of his property, for they have no right, either legal or equitable, in such estate, which can be asserted against his disposition of it by will. The law of the land has placed every person’s estate wholly under the control of the owner, subject to such final disposition of it as he may choose to make by his last will and testament, limited only by the statutory rights of his widow.

All parents have a right to judge as to who are the proper objects of their bounty; and if free from undue influence and insane delusions, and of sufficient mental capacity, may give their property to any person whomsoever,

IY. The law having conferred on every person over the age of eighteen years, and of sound mind, the right to elect and determine whether he will allow his estate to descend to his children in equal shares, or whether he will bestow his entire estate upon one or more of his children, to the exclusion of all others, it will not be presumed in law that he was insane, or of unsound mind, because he has exercised that' right, and discriminated between his children in the disposition of his estate.

Y. The father of a legitimate unmarried minor child is entitled to its custody, services and earnings, until the majority or marriage of the child, unless the parent relinquishes such earnings or services.

*43 If any child remain in the domicile of the father after attaining its majority, and continue in the services in which it had been engaged prior to its majority, no contract or obligation on the part of the father will be presumed to pay for such services, unless an express agreement to that effect is proved.

VI. The burden is upon the contestants in this proceeding to prove and establish the issues made herein, by a preponderance of evidence, and, unless so established, you will find each and every issue against said contestants.

VII. As to the Tenth Issue, you are instructed to determine, from the evidence in the case, in what year and month, and on what date, the will in evidence was signed by said James McGinn, and set forth the month, year and day so determined upon, in your answer, if you should find that it was ever signed by said McGinn.

VIII. Upon the Eleventh Issue, the court instructs you that you should determine, from all the evidence in the ease bearing upon the question, whether the said James McGinn was of sound and disposing mind at the time of signing the instrument offered in evidence, and purporting to be the last will and testament of said James McGinn, and if you find, from the evidence, that he was of sound and disposing mind at the time the said instrument was subscribed by him, and when the said James P. Tevlin and James P. Smith signed their names to the same, your answer to said Eleventh Issue should be “Ves.”

IX. A person may be said to be of sound and disposing mind who is capable of fairly and rationally considering the character and extent of the property to be disposed of, the persons to whom he is bound by ties of blood, affinity or friendship, or who have claims upon him, or who may be dependent upon his bounty, the persons to whom, the manner and proportions in which, he wishes the property to go.

X. Intellectual feebleness alone, or mere weakness of the understanding—whether this condition of mind is brought about by natural causes, or the result of an injury or disease—does not disqualify a person from making a valid will.

XI. A partial failure of mind or memory, oven to a considerable extent, whether it arises from an attack of apoplexy, *44 hemiplegia, or paralysis, or from any other cause, is not in itself sufficient ground for setting aside a will, if there still remain sufficient mind and memory to enable the testator to comprehend and understand what he is about, or what he is doing, and ability to understand that he is disposing of his estate by his will, and to whom he is disposing of it.

XII. In deciding upon the capacity of the testator to make his will, it is the soundness of mind, and not the particular state of bodily health, that is to be attended to. The latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of.

XIII. Neither old age, distress, nor debility of body, incapacitates to make a will, provided the testator has possession of his mental faculties and understands the business in which he is engaged. The real point in issue and for you to determine is, whether the testator was of sound or unsound mind at the precise date of the making and execution of the will in question. What his mental condition was before and after executing the will is only important as it throws light upon his mind, and shows its actual condition when the will was executed.

XIY. The law gives to every man of sound mind the right" to dispose of his property by last will, and this is regarded as one of the most sacred rights and the most efficient means which he has, in protracted life or old age, to command the attention due to his infirmities, and a man cannot legally be deprived of this right and power because he may have been stricken with apoplexy, or afflicted with hemiplegia, or paralysis, or because he may stutter or stammer in speech. However that may be, a person cannot be deprived of it for any of the reasons stated, ¿r because of any bodily affliction —whatever it may be. He may be moral or immoral, just or unjust—the right belongs to him, if he be of sound and disposing mind.

XY. It makes no difference whether the will appears to your mind to be just or unjust, equitable or inequitable; you are not for that reason to find that the testator was of unsound mind; for a man may be of sound mind and strong mind, and yet be exceedingly unjust.

*45 XVI. In determining the question of the soundness of mind of the testator, James McGinn, the jury have the right and' it is their duty to take into consideration the provisions of the will itself, and the condition and nature of the estate disposed of; the condition, mental and physical, of the beneficiaries under the will, their age, and whether otherwise independent, or dependent upon the bounty of the testator; the relations between the testator and any children excluded from any benefit under the will, their age, condition, and whether dependent or independent of his bounty in the matter of self-support, and their conduct toward him, in connection with all the other evidence that has been offered on the question as to whether the deceased was or was not of sound mind at the time of the execution of the will in evidence.

XVII. The Twelfth Issue is: Was the signing or subscribing, or publication or acknowledgment of said instrument, or any part thereof or therein, or any one or more of the dispositions of the property in said instrument contained, made under or procured by, or made by or under any undue influence exercised by Johanna McGinn, the surviving wife of said James McGinn, Ellen Prances McGinn, the daughter of said James McGinn, and Joseph McGinn, the son of said James McGinn, or by either of them.

Undue influence consists:

XVIII. The undue influence must be present influence acting upon the mind of the testator at the time of making his will, and the exertion of the undue influence upon the very act must be proved.

Procuring a will to be made, unless by foul means, is nothing against its validity. A man has a right by fair argu *46 ment to induce another to make a will, and even to make it in his own favor.

A will procured by honest means, by acts of kindness, attention, and by importunate persuasion which delicate minds would shrink from, would not be set aside on that ground alone.

It is only that degree of influence which deprives a testator of his free agency, and makes the will more the act of others than his own, which will avoid it.

Neither advice or argument nor persuasion would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion.

Undue influence is not such as arises from the influence of gratitude, affection or esteem; but it must be the control of another will over that of the testator, whose faculties have been so impaired as to submit to that control, and that he has ceased to be a free agent, and has quite succumbed to the power of the controlling mind or will.

XIX. All influences are not .unlawful. Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution or the like—these are all legitimate, and may be fairly pressed on a testator.

XX. Lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural result, even in influencing last wills.

XXI. However great the influence thus exerted may be, it has no taint of unlawfulness in it, and there can be no presumption of its actual unlawful exercise, merely from the fact that it is known to have existed, and that it has manifestly operated on the testator’s mind as a reason for his testamentary disposition.

XXII. Such influences are naturally very unequal, and naturally productive of inequalities in testamentary dispositions ; and as they are also lawful in general, and as the law cannot criticise and measure them so as to attribute to them their proper effect, no will can be condemned because the existence of such an influence is proved, and because the will contains in itself proof of its effect.

*47 XXIII. A wife cannot be denied the place accorded to her in her husband’s will, because it was due to the influence which she acquired over him by her good qualities and kind attention in his lifetime.

XXIV. If a wife, by her virtues, has gained such an ascendency over her husband, and so riveted his affections that her good pleasures are law to him, such influence can never be a reason for impeaching a will made in her favor, even if it exclude the residue of the family.

XXV. A will cannot be set aside because it is the result of an undue fondness for some member of the testator’s family, or a causeless dislike for another.

XXVI. If a wife urged upon a testator the propriety of leaving her his property, and to exclude others, it does not constitute undue influence to vitiate the will.

XXVII. The wife has the right to advise and to exercise her influence to move and satisfy the judgment of the testator.

And a son and daughter may exert some influence to induce the father to make a will.

XVIII. The record of the commitment of Mrs. McGinn to the State Asylum for the Insane at Napa, California, on account "of her insanity, has been admitted in evidence. As appears by the record, Mrs. Johanna McGinn was committed to said Insane Asylum long prior to the alleged execution of the will offered in evidence. There is no evidence to prove, or tending to prove, that Mrs. McGinn has been restored to mental sanity, and, under the circumstances, it is a conclusive presumption of law that she is, and has been ever since said order of commitment, insane, and it is your duty to find in accordance with said presumption—that is to say, that she has been, ever since said commitment, insane.

XXIX. To constitute undue influence there must be an intention on the part of the person exercising it to take an unfair advantage of another’s weakness of mind, or to take a grossly unfair advantage of another's necessity or distress. In order that such an intention may exist in the mind of the person exerting influence, it must appear that such person was at the time of sound mind, and capable of forming such intention.

*48 XXX. You are also instructed that by reason of the adjudged insanity above mentioned of Mrs. Johanna McGinn, she must be deemed incompetent to enter into any agreement or conspiracy with any person or persons whomsoever.

XXXI. Undue influence cannot be presumed, but must be proved in each case, and the burden of proving it by preponderance of evidence lies on the contestants in this case.

XXXII. Undue influence is not a presumption, but a conclusion from the facts and circumstances proved.

XXXIII. Undue influence is not to be presumed, nor should it be found upon mere suspicion, but upon facts proved to your satisfaction. The law will not presume, from the mere fact that there was an opportunity or a motive for the exercise of undue influence, nor is there any presumption of law, that undue influence was exerted, because of the mental or physical condition of the testator, or that his children, or any of them, were excluded from any benefit under his will.

XXXIV. Before this will can be set aside, you must believe and find from the evidence that at the time of the execution of the will the mind of James McGinn was .so under the control and influence of his wife, Johanna McGinn, his daughter, Nellie McGinn, and his son, Joseph S. McGinn, or some one of them, that he could not, if he had wished, have made a will different from this.

You must believe that he had not sufficient strength of mind to resist such influences exerted by them at the time of the execution of the will.

XXXV. If you believe from the evidence that James Mc-Ginn gave the instructions to his attorney for the preparation of the will, that it was prepared according to those instructions, that said will was read to him, that he heard it read, and knew its full contents, and understood its provisions, and that its provisions were in accordance with his wishes, and that at these times, and when the will was executed, he had sufficient strength of mind and control of his faculties to determine for himself that this will disposed of his property as he wished, and that he could if he had wished have made any other disposition of his estate, your answer to and verdict on the Twelfth Issue should be the word “No.”

*49 XXXVI. The Thirteenth Issue is: Was said James Mc-Ginn induced to sign said instrument, or to acknowledge, or publish, or declare the same to be his will, or to make any disposition of his property, or any provision therein contained, by the, or any, fraudulent misrepresentations or statements made to him, the said James McGinn, by Johanna McGinn, the surviving wife of said James McGinn, Ellen Frances McGinn, the daughter of said James McGinn, or Joseph S. McGinn, the son of said James McGinn, or either of them?

To constitute a fraudulent misrepresentation, it must be made with the intention of deceiving the person to whom it is made. The statement or misrepresentation must be false, and it must be known to the party making it to be so, or the party making it must have no reason for believing it to be true.

XXXVII. The fraudulent misrepresentation must be material, and it is not material if the transaction would have taken place without it.

A representation must be material, even though there were no other inducements to cause the party to act as he did. That is to say, the representations—if any were made in this ease—must have been false; they must have been made with the intention of deceiving James McGinn; they must have had that effect, and they must have' been such that the testator, James McGinn, would not have made the will in question without them, or would have made a different will if such alleged misrepresentations had not been made.

XXXVIII. You are not to presume that any false representations were made to the testator by Johanna McGinn, Ellen F. McGinn, Joseph S. McGinn, or any of them, and you should find that no such representations were made unless the contestants have proved by a preponderance of evidence :

XXXIX. The representations, if any were made, must be such as are alleged in the petition filed by the contestants. No other representations than those set forth therein should be regarded by you.

If the representations which are alleged in the petition of contestants are not proved, no others can be.

XL. The Fourteenth Issue is: Was said James McGinn induced to sign said instrument, or to acknowledge, or publish, or to declare the same to be his will, or to make any disposition of his property therein contained, by the, or any, fraud practiced upon him, the said James McGinn, or committed by said Johanna McGinn, and Ellen Frances McGinn, and Joseph S. McGinn, or by any of them?

Actual fraud has been defined in our code, section 1572 of the Civil Code, as consisting in any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

Fraud is never presumed; it must always be proved, and it can be established only by proving the facts constituting the fraud; and, in this ease, you should find that no fraud was practiced upon the testator, James McGinn, by any of the parties named, unless the contestants have proved to your satisfaction, by a preponderance of evidence:

The fraud must consist of the fraud alleged in contestants’ petition; no other should be regarded by you.

XLI. The Fifteenth Issue is: Was the said James McGinn, at the time when the said instrument was signed by him, and by said James F. Tevlin, and James F. Smith, and prior and subsequent thereto, laboring under or affected with or by any delusion or illusion as to Mary Clements, Emma Burns, P. H. McGinn, James McGinn, John McGinn, or Thomas McGinn, or as to any of them, or as to the filial affection of them, or any of them, towards him?

As to insane delusions: A sound mind is one wholly free from delusions. Weak minds differ from strong minds only in the extent and power of their faculties; unless they betray symptoms of delusions, their soundness cannot be questioned.

It is not the strength of a mind which determines its freedom from delusion; it is its soundness.

Thus, it is often said that such and such a distinguished man has a sound mind; yet a man in the plainer walks of life, of faculties of less extent or power, may be equally sound. The latter is one of sound mind equally with the former if free from delusions. Delusion of mind is, to an extent, insanity. The main character of insanity, in a legal view, is said to be the existence of a delusion; that is, that a person should pertinaciously believe something to exist which does not exist, and that he should act upon that belief.

Belief of things which are entirely without foundation in fact, and of the existence of which the testator had no evidence, and which no sane person would believe, is insane delusion; that is, when a person believes things to exist only, or at least in that degree only, in his own imagination, and of the nonexistence of which neither argument nor proof can convince him—that person is of unsound mind.

XLII. Belief based on evidence, however slight, is not delusion. One person, from extreme caution, or from a naturally doubtful frame of mind, will require proof before acting, amounting perhaps to demonstration; while another, *52 •of different faculties, but of equally sound mind, will act upon very slight evidence.

XLIII. Delusion rests upon no evidence whatever; it is based on mere surmise.

XLIY. It is alleged in the contestants’ petition, paragraph XIII, that said supposed or pretended will was made under the false and insane delusion that he, said James McGinn, had, during his lifetime, made provisions for and advances to these contestants, and to each of them, and that he had advanced to them, and to each of them, a just and equitable share of his property and estate.

This is the delusion, and the only delusion, alleged in contestants ’ petition; and, unless the contestants have proved to your satisfaction, by a preponderance of evidence, that said James McGinn labored under that particular delusion at the time of the execution of said will, your answer to and verdict on the Fifteenth Issue should be “No.”

XLY. Medical witnesses have been examined in this contest, and, so far as their testimony is dependent upon hypothetical questions, the court instructs you that:

The testimony of experts is frequently unsatisfactory, and many times unreliable. It is unsatisfactory, because it cannot convey to our minds the precise reasons why the conclusions are reached; and it is unreliable, because it is frequently based upon speculations instead of facts. Experts in the exact sciences and in mechanics, who base their opinions upon the laws of nature and of the exact sciences, and their own experience with those laws, have tangible facts before-them; but where the opinions are based upon speculation, where the subject of the inquiry, namely, the operation and condition of the human mind, is beyond the possibility of human knowledge, we should receive those opinions as at least uncertain. So, when we see a person perform such or such an act, we can form an opinion whether the act is .rational or irrational, whether it is consistent with the standard or average human intelligence and reasonableness; but when we advance to speculations upon what would or would not follow upon some supposed existence of mental conditions, we go beyond the scope of knowledge and tread upon the realm of imagination or conjecture.

*53 You are instructed, therefore, that while we receive and you will take into consideration the opinion of experts, such opinions are not entitled to as much weight as facts, especially where there is a conflict between an opinion and a fact. When a fact is established, it is a fact and cannot be overcome; while an opinion is but an opinion, and it may be true and it may be untrue. Opinions of different experts are often diametrically opposed to each other, even when based upon the same supposed conditions. *

XLVI. If the jury believes from the evidence, that any witness examined in this proceeding has willfully sworn falsely as to any matter or thing material to the issues in the case, then the jury are at liberty to disregard his entire testimony, excepting in so far as it may have been corroborated by other credible evidence or facts and circumstances proved on the trial.

XLVII. You are instructed that while our statute renders parties to a suit or proceeding of this character competent witnesses, and allows them to testify, still the jury are the judges of the credibility and weight of such testimony, and, in determining such weight or credibility, the fact that such witnesses are interested in the result of the suit may be taken into account by the jury, and they may give such testimony only such weight as they think it is entitled to under all the circumstances of the ease, and in view of the interest of such witnesses.

The jury have the right to take into consideration the situation and interest in the result of your verdict and all the circumstances which surround such witnesses, and give to their testimony only such weight as in your judgment it is fairly entitled to.

XLVIII. The court instructs the jury as a matter of law that, while the statute of this state authorizes a party to a suit to go upon the stand and testify in his own favor, he is under no obligation to do so, and if he fails to do so, the jury have no right to infer, from this fact alone, anything for or against such party.

There is no presumption or inference of law that such witnesses were not called to testify because of a consciousness *54 that their knowledge, if disclosed, would make against their side of the case, and in favor of the contestants.

A party is not bound to become a witness in his own behalf in order to avoid unfavorable legal inferences against him.

The instruction heretofore given you by the court, and to which reference is now made, refers to the character of the evidence as weaker or stronger, or satisfactory or unsatisfactory, and does not apply to the amount or sum total of the evidence offered.

XLIX. The jury are instructed that the preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact, or state of facts. In determining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testified, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements in view of all the other evidence adduced or circumstances proved on the trial, and from all the circumstances determine upon which side is the weight or preponderance of the evidence.

L. The court instructs you that it is not at all necessary to the validity or due execution and publication of a will, that the subscribing witnesses, or any of them, should be informed of or have any knowledge whatever of the contents of the document purporting to be the last will of the testator. It is sufficient, so far as the execution of the will is concerned, if the testator signs in their presence, and declares the instrument to be his last will and testament, and they subscribe their names thereto, in his presence, at his request.

Allowed and Given on the Part of Contestants.

1. Whenever nine of your number agree on an answer to an issue, it becomes your verdict on that issue. Your verdict must be in writing, signed by your foreman, and nine of you must agree on that verdict.

2. You are the sole and exclusive judges of the value or effect of the evidence. Your power of judging of the effect *55 of the evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence.

3. You are not bound to decide in conformity with the declarations of any number of witnesses which do not produce a conviction in your minds against a less number, or even against a presumption from their evidence satisfying your minds. Evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other side to contradict; therefore, if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. A witness is presumed to speak the truth, but this presumption may be repelled by the manner in which he testified or by the character of his testimony, or by evidence affecting his character for truth, honesty and integrity, or by contradictory evidence; and you, the jury, are the exclusive judges of the credibility of each and every witness, and as to every part of the testimony and evidence of each and every witness.

4. Direct evidence is that which proves the fact in dispute directly, without an inference or presumption. Indirect evidence is that which tends to establish the fact in dispute by proving another fact, and which, though true, does not itself conclusively establish that fact, but which affords an inference or presumption of the existence of that fact. Indirect evidence is of two kinds, inference and presumption. Inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect. A presumption is a deduction which the law expressly directs to be made from particular facts. The inference must be founded on a fact legally proved, and on such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature: Code Civ. Proc., 1958-1960.

5. A will or a part of a will, procured to be made by duress, menace, fraud or undue influence, is invalid.

*56 6. Every will, other than a nuncupative will, must be in writing, and every will, other than an olographic will and a nuncupative will, must be executed and attested as follows: Civ. Code, sec. 1276:

First. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto.

Second. The subscription must be made in the presence of the attesting witnesses, or acknowledged by the testator to them to have been made by him or by his authority.

Third. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,

Fourth. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request and in his presence.

7. A will can be revoked or altered: 1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or 2. By being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction: Civ. Code, see. 1292.

8. A person is of sound and disposing mind who is in full possession of his mental faculties, free from delusion and capable of rationally thinking, acting and determining for himself. Weakness of mind is not the opposite of soundness, but is the opposite of strength of mind, and unsoundness is the opposite of soundness. A weak mind may be a sound mind, and a strong mind may be unsound. The strong mind of a man possessed of superior talents and of a determined will may be so wrought upon or affected by some delusion as to be unsound; and a weak mind—that is, a mind of what we call a lower grade of intellect—may be so evenly balanced as to be sound. It is not the weakness or strength of mind which determines its testamentary capacity; it is its soundness; that is, its healthy condition and healthy action. It frequently occurs that there is partial insanity, or monomania—insanity as to one or more persons, or upon *57 one or more subjects, and soundness as to all others; and in such cases the testamentary capacity is affected as to a person or subject in regard to which the unsoundness exists.

9. Monomania consists in a mental or moral perversion, or both, in regard- to some particular subject, or class of subjects, while in regard to others the person seems to have no such morbid affection. The degrees of monomania are various. In many cases the person is entirely capable of transacting any matters of business out of the range of his peculiar infirmity; and, as to those matters out of that range, he may be entirely sound; while, as to matters within the range of the infirmity, he may be quite unsound: 1 Redfield on Wills, 72 et seq.

Whenever it appears that a will is the direct offspring of partial insanity, or monomania, it should be regarded as invalid, though the general capacity be unimpeached.

10. Unsoundness of mind may be the result of disease, drunkenness, or of one of many other causes. In case of drunkenness there are two conditions, a will made under either of which is invalid, viz.: Where the will is made during the period while the person is overcome by the delirium of intoxication, or where the use of intoxicating drinks has been so extensive and so excessive as to permanently disable the mind. But, in either case, the effect must be to have either temporarily or permanently overcome the judgment and unseated the reason.

11. Undue influence consists in the use, by one in whom a confidence is reposed by another who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him, or in taking an unfair advantage of another’s weakness of mind, or in taking a grossly oppressive or unfair advantage of another’s necessities or distress: Civ. Code, sec. 1575.

12. The issue of undue influence and the principles governing it are entirely different from the principles applicable to unsoundness of mind. Undue influence is entirely distinct from unsoundness. A person may be of sound and disposing mind and yet be the victim of undue influence, and he may also be a victim of such undue influence when of unsound mind. If James McGinn was of unsound mind on *58 September 26, 1887, when said instrument was signed and published by him—if it was ever signed and published by him—it is entirely immaterial whether or not any person exercised any undue influence over him in the matter of the making and execution of said instrument, because unsoundness of mind, of itself, incapacitates from making a will, influence or no influence. The question to determine here is, whether at the time of executing this alleged will—if it was ever executed—James McGinn was free to do as he pleased, or whether he was then so far under the influence of Johanna McGinn, Nellie Prances McGinn and Joseph McGinn, or any or either of them, that the will is not his will, but the will of said persons, or of one or more of them. Of course, persons who intend to control another’s actions, especially in regard to making a will, do not proclaim that intent. Very seldom does it occur that a direct act of influence is patent; the existence of the influence must generally be gathered from circumstances. Such as, whether he had formerly intended a different disposition of his property; whether he was surrounded by those who had an object to accomplish, to the exclusion of others; whether he was of such weak mind as to be subject to influence; whether the paper offered is such á paper as would probably be urged upon him by the persons surrounding him; whether they were benefited thereby to the exclusion of formerly intended beneficiaries. The question for you to determine is, Was James McGinn, from infirmity of age, or from disease or other cause, constrained to act against his will, and to do that which he was unable to refuse by importunity or threats, or by any other means, or in any other way, by which one person acquires and exercises dominion and control over another? It is not possible to define or describe with exactness what influence amounts to undue influence in the sense of the law; this can only be done in general and approximate terms. In each ease the decision must be arrived at by application of these general principles to the special facts and surroundings of the case.

13. In order that the will should have been executed under fraudulent misrepresentations, it is not necessary to consider the question of delusion or insanity. A person may be of *59 perfectly sound mind, and yet be influenced by fraudulent misrepresentations. You will, therefore, inquire whether the will contains any provision which was the product of such fraudulent misrepresentations as are alleged in contestants’ petition, which were made to the testator, or by any or either or all of the persons named, to -wit: Johanna McGinn, Nellie Frances McGinn and Joseph McGinn, for the purpose of inducing him, and which did induce him, to disinherit any one: You will inquire whether James McGinn was induced to sign, or to acknowledge, or to publish, the document propounded to be his will, or to make any of "the dispositions of his property, or any of the propositions therein contained, by or under fraudulent misrepresentations made by Johanna McGinn, Nellie Frances McGinn and Joseph McGinn, or by either or any of them, or by any statements made to him by them, that certain things existed which did not in truth exist, and which caused him to make a will different from what he would otherwise have made.

14. Circumvention by means of fraud will be considered in the same light as constraint by force, and will have the same effect in setting aside a will as such constraint has.

If the testator be compelled by violence or urged by threatenings to make his testament, the testament, being made by fear, is ineffectual.

Likewise, if he be circumvented by fraud, the testament loses its force; for, although honest intercession or request is not prohibited, yet those fraudulent and malicious means, whereby men are secretly induced to make their testaments, are no less detestable than open force.

Actual fraud has been defined in our code (Civil Code, section 1572) as consisting in any of the following acts committed by a party to a contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

15. An insane delusion is the pertinacious belief of the existence of something which does not exist, and the acting upon that belief. Belief of things which are entirely without foundation in fact, and which no sane person would believe, is insane delusion. If a person be under a delusion, though there be'but partial insanity, yet, if it be in relation to the act in question, it will defeat a will which is the direct offspring of that partial insanity.

17. In arriving at your verdict, you are to determine the different questions of fact, and each of the issues submitted to you, in accordance with the preponderance of evidence.

18. If you believe and are satisfied, by and from the evidence, that the respondents have not established and proved, by a preponderance of evidence, that the said instrument, claimed to be the last will and testament of James McGinn, deceased, was subscribed at the end thereof by said James McGinn, himself, or by some person in his presence, by his direction, then you will find as your answer to the First Issue, “No.”

31. If you believe and are satisfied, from and by the evidence, that said James McGinn, deceased, was not of sound mind at the time the said instrument was subscribed by him, and when said J ames F. Smith and J. F. Tevlin signed their names to the same, then you will find, as your answer to and your verdict upon Special Issue No. 11, the word “No.”

33. If you believe and are satisfied, from and by the evidence, that the mind and memory of said James McGinn had become so weakened and impaired, or deranged, from excessive indulgence in intoxicating liquors, or from any other cause, that he did not have or possess a sound and disposing mind and memory sufficient, or such a mind and memory as would enable him to recollect, discern and tell the relations, connection and obligations of family and blood, then it will be your duty to find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

*61 34. If you believe and are satisfied, from and by the evidence, that the said James McGinn, at the time when said instrument was signed and attested, was laboring or suffering under any mental delusion in relation to his children, or in relation to their affection, or want of affection for him, and that such delusion incapacitated him mentally from considering and weighing the relations and claims of his children upon him, then it will be your duty to find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

35. If you believe and are satisfied, from and by the evidence, that said James McGinn, at the time when said instrument was signed by him and attested by James F. Smith and J. F. Tevlin, was laboring under or suffering from any mental delusion as to his daughters, Mary A. Clements and Emma Burns, or as to either of them, and that such delusion so far affected his mind toward his said daughters, or either of them, as to make him mentally incapable of duly weighing and considering their claims upon him as his children, or the claims of either of them upon him as his child, then it is your duty to find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

36. If you believe and are satisfied, from and by the evidence, that said James McGinn, at the time when said instrument was signed and attested, had become and was by reason of excessive indulgence in intoxicating liquors, or by or through apoplexy, paralysis, or other diseases, idiotic or imbecile, to such a degree as to render him incapable of remembering and weighing the relations, connections and obligations of family and blood, and the claims of his children upon him, then it will be your duty to find, as your answer and verdict upon Special Issue No. 11, the word “No.”

37. If you believe and are satisfied, from and by the evidence, that the deceased, James McGinn, at the time when said instrument was signed and attested, was laboring under or suffering from a delusion in respect to his children, or in respect to any of his children who might have been the objects of his testamentary bounty, and that the disposing provisions of said instrument were caused or affected by such delusion, then you will find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

*62 38. If you believe and are satisfied, from and by the evidence, that said James McGinn, deceased, believed and supposed facts to exist which had no real existence, and against all evidence and probability, and conducted himself, however logically, upon the assumption of their existence, then he was, so far as such matters' are concerned, under a morbid delusion, a delusion in the sense of insanity, and was a person essentially mad or insane on those subjects, though on other subjects he might have had reason, or have acted or spoken like a sensible man.

39. A person may have upon some subjects, and even generally, mind, memory and sense sufficient to know and comprehend ordinary transactions and sufficient to enable him to attend to business, and yet upon the subject of his children, or upon the subject of some of his children, who would naturally be the objects of his care and bounty, he might be of unsound mind.

40. If you believe and are satisfied, from and by the evidence, that the deceased James McGinn, was, at the time when said instrument was signed and attested, laboring under a delusion in respect to his daughters, Mary A. Clements and Emma Burns, or either of them, and that this delusion influenced the making of said instrument, as to them, or either of them, then the instrument proposed is not the expression of the will of a testator of sound and disposing mind, and cannot be regarded as the will of James McGinn, and you will find, in answer to Special Issue No. 11, the word “No.”

41. If you believe and are satisfied, from and by the evidence, that James McGinn was, at the time when said instrument was signed and attested, laboring under the delusions alleged in contestants’ petition, with respect to his children, or any of them, then he. cannot be regarded as, or accounted as, mentally sane in making said alleged will, so far as his said children or any of them are concerned, though he might be mentally sane as to the rest of the world.

42. If you believe and are satisfied, from the evidence, that said James McGinn, at the time of signing and attestation of said instrument, had conceived or believed that his daughters, Mary A. Clements and Emma Burns, or either of them, had no affection for him, and that there was no *63 foundation for any such belief, and that he was incapable of being permanently reasoned out of that belief, then you will be warranted in concluding that said James McGinn was laboring under an insane delusion, and it will be your duty to find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

46. Unsoundness of mind, in the sense of Special Issue No. 11, embraces every species of mental incapacity, from raging mania to that debility and extreme feebleness of mind which approaches near to and even degenerates into idiocy.

55. In determining whether or not said James McGinn was of sound or unsound mind at the time of the making, signing and attestation of said instrument, you can take into consideration the disposition of property and the provisions made and contained in said instrument, as well as the manner in which the same is written and signed.

58. If you believe and are satisfied, from and by the evidence, that James McGinn was of unsound mind at the time of making, signing and attestation of said instrument, then no subsequent act or declaration of his could make said instrument valid as a will, and if you so believe, [then] any and all evidence of the soundness of mind of James McGinn, at a period subsequent to the making of said will, will be disregarded by you in finding your verdict upon Special Issue No. 11.

60. If you believe and are satisfied, from and by the evidence, that all the property of James McGinn was acquired after his second marriage, then said property is community property, and Johanna McGinn is entitled as his surviving wife to one-half of said property, and can claim the same though the said instrument is admitted to probate.

61. In deciding the issues raised by the pleading in this contest and submitted to you, you are instructed that the decree which admitted the alleged will to probate is not evidence as to any of the said issues, or as to any of the facts contained in said issues.

62. The decree of this court admitting said alleged will to probate, which has been admitted in evidence, does not raise or create any presumption of law that James McGinn was of sound and disposing mind or competent to make a will

*64 at the time when said alleged will was executed, if the same was ever executed by him.

The court, then, of its own motion, further charged the jury as follows:

The case is now with you.

THE SPECIAL ISSUES SUBMITTED.

The court then submitted the following special issues to the jury for their special verdict and answer to each of said issues, to wit :

But see Estate of Blake, 136 Cal. 307 , 70 Pae. 171.