In the Matter of the Estate of SARAH C. HAYDEN, Deceased; FREDERICK H. COLLINS, Proponent of Will, Appellant, v. A. L. WESTING, Administrator, Respondent, 149 Cal. 680

HENSHAW, J. Sarah C. Hayden died in the county of San Joaquin on the sixth day of June, 1904. After her death A. L. Westing, her grandson and one of her heirs, applied for letters of administration upon her estate, alleging her intestacy. About nine months before her death Mrs. Hayden, who had become paralyzed in the latter part of the year 1902, and who had failed physically and mentally from that time, was declared incompetent, and Westing was appointed her guardian, and continued to act as her guardian until the time of her death. Frederick H.

Collins, a nephew by marriage of the deceased, filed a petition in opposition, alleging that Mrs. Hayden had died leaving a last will and testament, and that Westing and a hired servant, or some person acting with them and under their direction, had taken, carried away, and concealed the last will and testament wherein Westing was disinherited for the purpose of enabling him to obtain the property for himself. The petition sets up what was alleged to be a copy of the will and a codicil thereto.

The court refused probate of the alleged will, and granted letters of administration to Westing, and from its decrees these appeals are taken. It is first contended that as no written opposition to the probate of Mrs. Hayden’s will had been filed, as required by the provisions of

section 1312 of the Code of Civil Procedure, respondent has no standing before this court; but as Westing himself in his petition for letters of administration had alleged the intestacy of the deceased, and as throughout the proceedings in the trial court the pleadings were recognized as sufficient to raise issue upon this matter, appellant’s position is not well taken, and even if respondent were not to be heard, as it was incumbent upon appellant to make satisfactory proof of the will, and he failed to do this to the satisfaction of the trial court, it was the duty of the trial court, even without opposition, to have refused probate to Mrs.

Hayden’s purported will. There was testimony to show that deceased had made a will and a codicil thereto. There was, however, no testimony that Westing or anybody acting with or under him had ever seen or had possession of the will, much less that they had' feloniously taken, concealed, or destroyed it. There was also evidence that if the will was made it was revoked by the deceased in her lifetime, the -testimony showing declarations of the deceased that she did not have a will, and that they (meaning Collins and those in interest with him) were endeavoring to induce her to make a will.

The case is typical of the wisdom of the rule so long enunciated and adhered to by this court that it. cannot and will not disturb a judgment given upon conflicting evidence. Much of the weight of the testimony in this case of necessity depends upon the standing and credibility of the witnesses upon either side, as to which the trial court and not this is alone capable of judging. The appellant contends that the findings are enigmatical and uncertain. The finding to which this attack is addressed is as follows: “that Annie Fogacci nor A. L.

Westing, nor any other person, took or carried away any will or codicil, or other document of value belonging to said Sarah G. Hayden, for the purpose of enabling A. L. Westing to fraudulently or at all get possession of the property of said Sarah 0. Hayden, or for any other purpose whatever; that said Annie Fogacci nor A. L. Westing ever at any time found or had in their possession any will of said Sarah C. Hayden, deceased, nor are they, or either of them, in the possession of any will of Sarah C.

Hayden, nor did they, or either of them, ever have in their possession or under their control any will whatever of said Sarah C. Hayden, deceased.” While unquestionably the finding would have been made clearer by the insertion of the word “neither” before the name “Annie Fogacci,” this omission does not nullify the finding, as the context makes perfectly plain what the court meant to declare. The finding of the court that the allegations of the opposition of Frederick H. Collins “with respect to Sarah C. Hayden leaving any will, or any person having in their possession any will of Sarah C.

Hayden, deceased, are untrue,” is sufficient as a finding to justify the court’s refusal to admit'the alleged will to probate. We have examined the alleged errors of the court in admitting and rejecting evidence. None of the points call for detailed consideration. It is sufficient to say that the rulings were proper. The orders and decrees appealed from are affirmed. Lorigan, J., and McFarland, J., concurred. Hearing in Bank denied.