In the Matter of the Estate of THOMAS D. WALL, Deceased. SARAH J. WALL, etc., Appellant, v. J. GEORGE HUNTER, Executor, etc., Respondent, 187 Cal. 50

WILBUR, J. This is an appeal by the surviving wife from a judgment sustaining a will in a proceeding for the revocation of the probate of a will instituted by her. The grounds of contest were undue influence and insanity. The issue of insanity was submitted to the jury and a verdict was rendered in favor of the respondent, sustaining the will. As no substantial evidence of insanity was produced, the verdict of the jury holding the decedent to be sane is not attacked by appellant.

The issue of undue influence was withdrawn from the jury on motion of the executor on the ground that there was not sufficient proof of undue influence to go to the jury, and this order withdrawing such issue appellant claims to be erroneous. The will is charged to have been secured by undue influence of John J. Wall, a brother of the testator and Eliza Smith and Ann McLennan, sisters of the testator, and J. George Hunter and A. H. Winder, who were nominated as executors of the will and were subscribing witnesses thereto. A. H.

Winder was consulted by the deceased as his attorney and drew the will in that capacity. J. George Hunter had nothing to do with the execution of the will except to act as witness thereto at the request of tbe testator. There is no evidence that either of these parties exercised any influence whatever over the testator in connection with the execution of the will. There is no evidence whatever that the brother or sisters in any manner participated in or had anything to do with, or exercised any influence over or held any communication with, the testator in relation to the execution of the will.

Undue influence must operate upon the mind of the testator at the time of the execution of the will. Not only is there no evidence of the exercise of influence at or about the time of the execution of the will, but also there is no evidence that at any time any of the parties charged with the exercise of undue influence, other than the attorney who prepared the will, ever addressed themselves in any manner, directly or indirectly, to the deceased in relation to the execution of the will in question or any other will, and there is no evidence that the attorney exercised any undue influence over the testator.

It follows that the order of the court withdrawing the issue of undue influence from the jury was proper. However, before leaving this branch of the case, we will state in a general way the position of the appellant, the plaintiff in the court below, and indicate the answer to her contentions. First: The appellant relies upon the fact that certain allegations of her petition were not denied by some of the heirs charged with undue influence. The situation in that regard is as follows: Upon the filing of the plaintiff’s petition for the revocation of the will a citation was issued and served as required by

section 1328 of the Code of Civil Procedure, directed to the executor of the will and to all the legatees and devisees mentioned in the will and heirs residing in the state, requiring them to appear and show cause why the probate of the will should not be revoked. The only answer filed to the petition was that of the executor, which he filed on behalf of himself and all other persons who had appeared in the proceeding.

The answer of the executor denied the allegations of the petition now relied upon by the appellant in support of her claim that undue influence was established, but she contends that the failure of the heirs charged with undue influence to deny the allegations of the petition amounted to an admission of the truth of such allegations.

This claim and others based upon it may be dismissed from further consideration upon calling attention to the fact that as between the executor and the plaintiff the facts alleged and relied upon by the plaintiff were, put in issue, and that therefore the failure of the heirs to deny such allegations is of no significance whatever. The plaintiff could not secure the revocation of the will without overcoming all of the opposition to such revocation and this required her to prove all the petitioner’s material allegations put in issue by the executor.

The answer of the executor directly denied the allegation of insanity and directly denied the exercise of undue influence by any of the parties charged therewith. The petition alleged many matters of an evidentiary nature, such, for instance, as the fact that some of the brothers and sisters had at previous times secured property from the testator without consideration and by the exercise of undue influence.

It was not necessary to deny these evidentiary matters, and the failure to do so did not admit such evidence where the answer specifically denied each and every allegation of the exercise of undue influence upon the testator at the time of or in connection with the execution of the will in question. (Racouillat v. Rene, 32 Cal. 450; Wormouth v. Hatch, 33 Cal. 121; Jones v. City of Petaluma, 36 Cal. 230, 233.) For this reason we will not enter into a detailed consideration or discussion of the facts claimed to have been admitted.

Most of these, however, were formally and specifically denied for lack of information and belief by respondent. It is claimed that the will itself is evidence of undue influence because of its unnatural character. It is true that the will left only one hundred dollars to the wife, but in view of the fact that she alleges that decedent had already begun one action for divorce against her and contemplated another, it is not surprising that she was not left a larger amount. Letters by the testator, written long before the will was executed, make it plain that he had no affection or regard for his wife.

The will was not unnatural under the circumstances, but even if it was, this alone could not justify a verdict based upon undue influence. The evidence, considered without the facts erroneously claimed by the appellant to be admitted by the pleadings, falls so far short of constituting substantial or sufficient evidence of undue influence to be presented to the jury that we refrain from further discussion thereof. The appellant relies upon other alleged errors for a reversal and we proceed to a consideration of those which merit discussion. Plaintiff made a motion for a judgment on the pleadings.

In view of the fact that all material facts were put in issue by the answer, the motion was properly denied. Plaintiff made a motion that the case be tried by a jury drawn from the trial jury box. This motion was denied and the trial court ordered a special venire, no jury being in attendance or drawn. It is shown by affidavit that at the time the motion was made and at the time of trial there were 250 names in the term trial jury box, properly placed therein. The better practice is to use jurors whose names are drawn from the term trial jury box. (People v.

Suesser, 142 Cal. 354, 360, [75 Pac. 1093].) It is well established, however, that the court has discretion to order a special venire, as provided in

section 226 of the Code of Civil Procedure, notwithstanding the fact that there are sufficient names in the term trial jury box (People v. Suesser, supra; Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, [103 Pac. 190], and cases there cited). The denial of petitioner’s motion was within the discretion of the trial court. At the time of trial the plaintiff challenged the jury panel upon the following grounds: First, that the panel was not drawn according to law; second, that the panel was not drawn in compliance with plaintiff’s demand heretofore made; that it was not summoned to attend forthwith as required by

section 226 of the Code of Civil Procedure; and, third, that the sheriff was disqualified to act. The order for a special venire was erroneous for 'the reason that it directed the sheriff to summon twenty-four good and lawful men of the county, whereas by reason of the amendment of 1917 [Stats. 1917, p. 1284] to said

section 226 of the Code of Civil Procedure, the venire should have required the summoning of good and lawful persons. This objection, however, was not specifically pointed out to the trial court and would, no doubt, have been corrected had the specific objection been made, and therefore we will not consider the objection upon appeal. The contention that the sheriff was disqualified to summon a jury was based upon the fact that Mr. Winder, one of the attorneys in the case who was charged with undue influence, was also an attorney for a corporation of which the sheriff was a director.

This was insufficient to show disqualification. The right to challenge the entire panel exists in criminal cases (secs. 1055, 1064, Pen. Code), but in civil cases the right of challenge is confined to the individual juror (sec. 601, Code Civ. Proc.); moreover the basis of the challenge would have been insufficient even if such a challenge was permissible in a civil case as in a criminal case (Code Civ. Proc., sec. 602; sec. 1064, Pen. Code).

Appellant complains of the form of judgment which after stating that the jury “duly rendered their verdict in favor of defendant,” decrees that the executor recover his costs from plaintiff. The judgment should have formally denied the petition for the revocation of the probate of the will, but we cannot see that the appellant is injured by the failure to expressly deny her petition. The appellant objects to the exclusion of certain evidence offered to prove undue influence. The evidence is set out in the transcript.

It is unnecessary to consider in detail its admissibility, for the reason that giving to it all the probative value claimed for it by the appellant, it is insufficient, together with all other evidence produced by the appellant, to justify the submission of the issue of undue influence to the jury. All other alleged errors claimed by the appellant are either disposed of by what has already been stated, or are too trivial to merit discussion. Judgment affirmed. Sloane, J., Shaw, J., Shurtleff, J., Lawlor, J., Lennon, J., and Angellotti, C. J., concurred. Rehearing denied.

All the Justices concurred, except Shaw, J., who was absent.