In the Matter of the Estate of MARY CUNNINGHAM, 52 Cal. 465

argued that the Court should have left the facts to the J ury. J. G. Severance and J. F. Sullivan, for the Respondent. By the Court : One of the questions submitted to the J ury was as follows: “ Was the execution of this will” (meaning the will filed July, 18T6) “ obtained by undue influence ? ” This will was executed, if at all, April 29th, 1874, and there was evidence to the effect that the testatrix was unfit to transact business when under the influence of liquor, and that she was “ on a spree ” and scarcely drew a sober breath during the last three weeks of April, 1874.

Under these circumstances the Court below first instructed the J ury that they should find that the will was not obtained by undue influence. The circumstance, if true, that the testatrix was in this condition when she executed the will was pertinent evidence, in connection with other circumstances in proof upon the question of undue influence; inasmuch as a person in that condition might be more readily influenced than if sober at the time. In this view the instruction as given was erroneous.

Subsequently the Court instructed the Jury that the question of “ undue influence, menace, duress, and fraud ” in the execution of this will was one submitted to them for their verdict. In short, the two instructions were contradictory—the one withdrawing from the Jury, and the other submitting to them the same question of fact, and must have confused them in their deliberations. Judgment and order reversed, and cause remanded for a new trial.