6. Holding: The holding is the answer to the issue. There should be a separate holding for each issue identified in the issue section of the case brief. Indicate here - with a "yes" or "no" if possible - the court's answer to the question in the Issue section. 7. Reasoning: Summarize as briefly as possible the reasons given by the court for its decision (or decisions) and the case or statutory law relied on by the court in arriving at its decision. 8. Disposition: In this section, include the relief granted by the court, which is the order entered by the court. This is usually located at the very end of the opinion.

9. Comments: In this section include any observations you may have concerning the court opinion.

Estate of Lingenfelter, 38 Cal. 2d 571 -

Cal: Supreme Court 1952

38 Cal.2d 571 (1952)

Estate of VIVIAN LINGENFELTER,

Deceased. LENORE DeARMOND,

Respondent,

v.

MADGE TUCKER et al., Appellants.

Supreme Court of California. In Bank.

Mar. 14, 1952.

Brobeck, Phleger & Harrison, Hewitt &

McBride and Gregory Harrison for

Appellants.

Robert W. Steel, Ray Manwell and Erling S.

Norby for Respondent.

EDMONDS, J.

Madge Tucker, sister of Homer Lingenfelter,

proposed for probate the purported will of

Vivian Lingenfelter, his deceased widow.

The contest of Lenore DeArmond is based

upon the asserted incompetency of the

testatrix. It is also charged that the will was

executed as the result of duress and undue

influence exercised by the proponent and her

husband. The appeal is from a judgment

entered upon a verdict in favor of the

contestant and from an order denying a

motion for judgment notwithstanding the

verdict.

Homer Lingenfelter was an attorney

practicing in partnership with Arthur Powell.

On the day Vivian executed the purported

will, Homer was seriously ill. He died the

following day. One week later, Vivian

committed suicide.

Powell was called as a witness by both the

proponent and the contestant. As Lenore's

witness, he testified concerning the execution

of the will. Vivian came to see him, he said,

accompanied by Madge, who had been

staying with her during Homer's illness.

Powell was not in his office when the two

women arrived. Upon his return shortly

thereafter, he found Vivian and Madge

waiting for him in his reception room. Powell

asked about Homer and Vivian said that he

looked better.

Vivian and Powell went into his private

office and closed the door. Madge remained

in the reception room. Vivian handed Powell

a paper which purported to be her

holographic will. He testified that she wanted

to know "if it is a good will legally." That

instrument, he said, made bequests to a

number of friends and acquaintances. It also

included a provision for the care of a pet cat.

Powell read the document aloud. As he

mentioned each of its provisions, Vivian

made some comment, expressing in virtually

every instance her reasons for the bequest.

According to Powell, by the document

Vivian gave the residue of the estate to

Madge and her husband. Powell testified that

when he read that clause, Vivian said, "They

are only my in laws but they have always

helped Homer and myself when we have

needed them most and they have done more

for me than my own family ever has."

Powell testified that he called to her attention

the omission of any provision for Homer. Her

reply, he said, was that, because Homer was

so very ill, "she didn't expect him to make it

and in any event she didn't have much of

anything of her own." The situation, as

Powell explained it, was that "we had really

written Homer off." Powell also testified that

Vivian told him she omitted her brothers

from her will because one had obtained her

share of her mother's estate and the other was

adequately cared for.In other conversations related by Powell, he

said that they discussed her property and

Homer's separate property. He explained to

her that she could will one half of the

community property of herself and Homer.

"She understood if anything happened to one

first the other would get" the marital home

which was held in joint tenancy. She told

Powell that she had no bank account of her

own, only a joint account with Homer for

household purposes. They also discussed

Homer's life insurance. Powell admitted that

he did not mention the value of the accounts

receivable on the books of the law

partnership.

In answer to a question whether he believed

Vivian was capable of writing an

introductory clause to a will such as that in

the holographic instrument, Powell stated: "I

believe she could on either of one or two

conditions; one if Homer had helped her, or

two, if she was going by another will, but it

was pretty letter perfect."

Vivian asked Powell to have the document

she had written prepared as an attested will,

naming Madge as executrix. Certain other

minor changes were to be made, such as a

more specific provision for care of the cat.

Powell testified that he dictated a formal will,

using the handwritten document and some

notes which he had taken during the

conversation as a memorandum. When

testifying, Powell could not remember

whether the purported holographic will had

been dated. He also could not recall what he

had done with that document or with his

notes, although he had searched for them in

his office after Lenore's attorney had asked

him to preserve "all Lingenfelter wills."

While the formal will was being prepared,

Vivian and Madge left the office and walked

about town. Upon their return, Madge

remained in the reception room while Vivian

went into Powell's private office and

executed the will. At that time, Powell told

the jury, "very definitely" Vivian was of

sound mind. The other attesting witness to

the will testified to the same effect.

A number of witnesses described Vivian as

being a highly emotional and unstable

person. According to the evidence, she would

become upset on the slightest provocation.

When upset, she would "disintegrate

emotionally." She would scream and yell, her

eyes would become glassy, she would weep

uncontrollably and be beyond the reach of

reason. She could have her mind diverted

from whatever was bothering her at the

moment by talk of something else.

There is also testimony that Vivian was a

person of very weak will, easily led and very

susceptible to suggestions. She was almost

completely dependent upon Homer and

unable to manage for herself her own

shopping and ordinary routine of life. She

could not cope with any unusual situation

such as illness, which demanded extra energy

or more responsibility, and had to have help

to meet it.

Among other subjects which seemed to upset

Vivian were relatives, politics, Franco,

Stalin, and the stability of the economic

system of the world and of the United States.

When emotionally disturbed, she would

become extremely excited and abusive of

anyone who did not share her views. She was

jealous of Homer, and during one tantrum of

several days' duration she procured a gun.

Her suspicions of Homer's infidelity were

unwarranted.

Dr. Bone, who had treated Vivian as recently

as one week prior to her execution of the will,

testified that she was unwell from the time he

first knew her. He said she was an advanced

psychoneurotic and a borderline casebetween sanity and insanity in a medical

sense. In his opinion, she could be of unsound

mind under the stress of excitement, anger or

fear. Dr. Kimmel, long Vivian's physician,

testified that she was of sound mind, but

psychoneurotic to the extent of being barely

able to manage her household.

Mrs. Valetta Morton, who saw Vivian

between the two visits to Powell's office,

testified that her conversation at that time did

not make sense. As stated by this witness:

"Well, she was talking about Mr.

Lingenfelter being in the hospital one minute.

Then she asked me to feel her back and

maybe her neck, and to explain she said she

was like being in a board, just as stiff as a

board, and she said 'I have this severe pain in

my head at all times.' Then she would take

her glasses, take them off and put them on

and raise them up and pull them down, and

her eyes looked very glassy." In Mrs.

Morton's opinion, Vivian was of unsound

mind at that time.

Mrs. Norby testified that when she saw

Vivian a day or two after Homer's death

Vivian was very upset. Vivian was

perspiring, her hands were shaking, she was

gray in the face and hesitant in talking. She

cried and hung on to Mrs. Norby and talked

"like anyone that is in grief." In the opinion

of this witness, Vivian had always been of

unsound mind and was in that condition at the

time of the conversation related to the jury.

Another of Vivian's friends, Marie

Countryman, told of attempts to talk with

Vivian about the time of Homer's illness. She

stated that while Homer was ill, she tried to

call Vivian on the telephone. The call was

answered by an unidentified woman, who

said "that Vivian was reading or was not able

to talk." After Homer died, the witness called

at the Lingenfelter home but no one answered

the door. She again telephoned and the

person who answered asked her "to wait a

while ... To wait, not to come out." A day or

two after Homer died, Mrs. Norby visited

Vivian at her home. Also, the day after

Homer died, Lenore talked to Vivian on the

telephone.

According to several witnesses, Vivian often

had stated that she considered Madge

domineering and greedy. Vivian claimed that

Madge had gotten the best of a deal with

Homer in connection with their mother's

estate. Two weeks before Homer's death,

Vivian had said that she did not want Madge

to come to her home because she was too

domineering. There is testimony quoting

Vivian as saying that the Tuckers

consistently were conniving to get the

Lingenfelter money. The record shows that

Vivian expressed her dislike of Madge with

screaming and yelling.

Over Madge's objection, evidence was

admitted concerning Homer's statements in

regard to her and Lenore. This testimony was

to the effect that Homer considered the

Tuckers to be "money minded," domineering

and completely mercenary. As the witnesses

related the conversations, he described

relations between himself and Madge as a

case of "dog eat dog," and said that Madge

had "hogged their father's estate." Homer was

very bitter because of Madge's treatment of

their mother, whom he said she had killed. He

especially hated Madge's husband, called him

names, and said that he and Madge never

would get a penny of his money.

For many years and at the time of his death,

the contestant was Homer's secretary.

Testimony on her behalf is to the effect that

he was most appreciative of her services. The

jury was told of conversations in which

Homer had said that, when he was starting to

practice law, she had worked at a very small

salary; she deserved everything he could doto help her and Vivian felt the same way.

Other statements attributed to Homer were

that, because Lenore had never been paid

enough for her services, by his and Vivian's

wills she would be taken care of and

education provided for her child. Several

witnesses were permitted to testify, over

objection, as to Homer's declarations of his

testamentary provisions.

Lenore testified that in 1937 Vivian executed

a will naming Homer as principal

beneficiary. Under this will, the contingent

beneficiaries were a [colleague], Marie

Countryman, and Lenore. The witness also

stated that at the same time, Homer executed

a will naming Vivian as principal beneficiary

and Lenore as the sole contingent

beneficiary. Another will of Vivian's made in

1946, was received in evidence. It named as

contingent beneficiaries Lenore, Pauline

Garewal and the [colleague] which was a

beneficiary under the 1937 will.

According to the evidence, Vivian often had

spoken to intimate acquaintances concerning

the testamentary provisions she and Homer

had made in their various wills. As stated by

one witness, about two weeks before Homer

died, Vivian said that her and Homer's wills

were written just the way they wanted them.

Over objections, his will, which named

Lenore as contingent beneficiary and

executrix, was admitted into evidence.

It appears that Madge had visited the

Lingenfelters occasionally, and corresponded

with Homer, but there is no evidence of

constant association. On several occasions

during Homer's illnesses, Madge came to the

Lingenfelters' home at their request and

helped in caring for Homer and running the

household. By telegram, during Homer's last

illness, Vivian asked Madge to come for that

purpose. Madge arrived 10 days before

Homer's death and stayed with Vivian until

shortly before the suicide.

Upon this and other evidence, the jury

returned a verdict in favor of Lenore upon

each of the two grounds of contest. Thereafter

a motion for judgment notwithstanding the

verdict was denied. The appeal is from the

judgment entered on the verdict and also

from the order denying the motion.

The proponent of the will asserts that the

evidence is insufficient to sustain the jury's

verdict either that Vivian was of unsound

mind at the time she executed it or that it was

procured by undue influence. Also, it is

claimed that prejudicial error resulted from

the admission into evidence of Homer's

hearsay statements and the certificate

showing Vivian's brother's commitment to a

hospital for mental diseases. Another point

relied upon is that Vivian's hearsay

statements were admitted in evidence to

prove the truth of facts asserted in such

statements. Rulings characterized as being

prejudicially erroneous concern certain

instructions which were given to the jury and

the refusal of other instructions.

Lenore takes the position that the evidence

fully supports the jury's verdict upon each

ground of contest. She declares that the court

correctly ruled upon the admission of

evidence and the instructions.

More specifically, Lenore argues, from the

evidence the jury had a right to believe that

Vivian did not comprehend the nature of her

testamentary act. The record fully supports

the implied finding, it is said, that at the time

Vivian executed the will she was not aware

of the character and extent of her property nor

did she have in mind the persons who were

the natural objects of her bounty.[1a] Accepting that construction of the

evidence most favorable to Lenore, it shows

no lack of testamentary capacity at the time

of the execution of the will presented for

probate. There is testimony concerning

isolated acts, foibles, idiosyncrasies, mental

irregularities or departures from the normal

which do not bear directly upon and influence

the testamentary act. But much more than

that is required to set aside bequests of

property. [2, 3] "The actual mental condition

of the decedent at the time of the execution of

the will is the question to be determined upon

a contest based on his alleged incompetency

and evidence tending to show unsoundness of

mind either before or after the execution of

the will is important only in so far as it tends

to show mental condition at the time of the

execution of the will. ... To overcome the

presumption of sanity the contestant must

show affirmatively and by a preponderance

of the evidence that the testator was of

unsound mind at the time he executed his

will." (Estate of Smith, 200 Cal. 152, 158

[252 P. 325].)

The only testimony bearing upon Vivian's

state of mind at the time of the execution of

the will was that of Powell, the attorney who

drew the will, and the other attesting witness.

Both declared that Vivian was of sound mind

at the time of execution of the will. None of

the evidence offered to support a contrary

determination indicates a mental condition

which deprived Vivian of testamentary

capacity at the time the will was executed.

[4] The most that can be drawn from all of the

accounts of her conduct is that she was ill,

weak, highly nervous and excitable, and

prone to violent outbursts of neurotic temper.

The acts which led certain witnesses to

express the opinion that she was of unsound

mind had no bearing upon her testamentary

capacity. Even Mrs. Morton's description of

Vivian at a time shortly before the will was

executed, shows no more than Vivian's

nervousness and concern with the health of

herself and her husband. It does not tend to

prove mental degeneration denoting

incapacity to understand the testamentary act.

Mrs. Norby's testimony shows only Vivian's

deep grief caused by the loss of her husband.

[5, 6] "Every mental departure from the

normal will not destroy a testamentary

disposition, ... Mental derangement sufficient

to invalidate a will must be insanity in one of

two forms: (1) insanity of such broad

character as to establish mental

incompetency generally, or (2) some specific

and narrower form of insanity under which

the testator is the victim of some

hallucination or delusion. Even in the latter

class of cases, it is not sufficient merely to

establish that a testator was the victim of

some hallucination or delusion. The evidence

must establish that the will itself was the

creature or product of such hallucination or

delusion; that the hallucination or delusion

bore directly upon and influenced the

creation and terms of the testamentary

instrument." (Estate of Perkins, 195 Cal. 699,

703-704 [235 P. 45]; Estate of Arnold, 16

Cal.2d 573, 585 [107 P.2d 25].)

[1b] "Testamentary capacity cannot be

destroyed by showing a few isolated acts,

foibles, idiosyncrasies, moral or mental

irregularities or departures from the normal

unless they directly bear upon and have

influenced the testamentary act." (Estate of

Wright, 7 Cal.2d 348, 356 [60 P.2d 434];

Estate of Selb, 84 Cal.App.2d 46, 49 [190

P.2d 277]; Estate of Arnold, supra, p. 586.)

[7] The fact that Vivian committed suicide is

relevant upon the question of sanity, but

standing alone it is insufficient to show an

insanity so complete as to destroy

testamentary capacity. (Estate of Finkler, 3

Cal.2d 584, 595 [46 P.2d 149]; Estate of

Rich, 79 Cal.App.2d 22, 30 [179 P.2d 373].)[8] Likewise there is no evidence that Vivian

suffered from an insane delusion which

influenced her will. Unquestionably she was

extremely jealous of, and very much in love

with, Homer. According to some witnesses,

Homer's teasing occasionally had set Vivian

off on one of her rages. At other times,

coincidental circumstances aroused her

jealousy. But this jealousy has not been

connected with Vivian's testamentary

disposition in any way. Moreover, her

jealousy was not a delusion, for it was based

upon conduct which had a tendency to create

her momentary beliefs. (Estate of Alegria, 87

Cal.App.2d 645, 655 [197 P.2d 571].)

Vivian's other prejudices also fail to establish

any delusion. None of them in any way bears

upon her testamentary disposition. [9] "Care

must be taken to differentiate between mere

unreasonable opinions and mental

derangements. Testamentary capacity does

not depend upon the testatrix' ability to

reason logically or upon her freedom from

prejudice. A belief may be illogical or

preposterous, but it is not, therefore, evidence

of insanity." (Estate of Perkins, supra, p.

708.)

[10] "A testator is of sound and disposing

mind and memory if, at the time of making

his will, he has sufficient mental capacity to

be able to understand the nature of the act he

is doing, and to understand and recollect the

nature and situation of his property and to

remember, and understand his relations to,

the persons who have claims upon his bounty

and whose interests are affected by the

provisions of the instrument." (Estate of

Smith, supra; Estate of Arnold, supra, p. 586;

Estate of Sexton, 199 Cal. 759, 768 [251 P.

778].)

[11] A complete answer to the charge that

Vivian did not comprehend the nature of her

testamentary act is the uncontradicted

evidence showing that she knew exactly what

she was doing. She set down her wishes in

her own handwriting in the form of a

holographic will. Then she sought legal

advice as to whether it was a "good will

legally." She discussed the provisions of the

will with her attorney, explaining the reason

for each of them. After she had executed her

formal will and left Powell's office, she

returned, and asked him to destroy her other

will. Nothing in her previous or later conduct

indicates that, at any time, she did not fully

understand the consequences of her bequests.

[12] The record is also without contradiction

that Vivian fully comprehended the nature

and situation of her property. The only

testimony in this regard is that of Powell. It

shows that, for a woman unaccustomed to

business dealings, she had a surprisingly

good grasp of her property interests. She

understood that, outside of the assets of the

law partnership, very little would pass under

her will while Homer lived. She took into

consideration the insurance involved. She

understood the nature of the joint tenancy in

the house. She mentioned that she had no

bank account of her own, only a joint account

with Homer for household purposes.

[13] Lenore argues that Vivian was not aware

of the character and extent of her property

because she did not take into consideration

the accounts receivable of the law firm.

Conceding this fact, it does not show any

failure to understand the nature of her

property. In their conversations, as recounted

by Powell, she said "Homer had told her he

was drawn up pretty well to take care of his

doctor bills and expenses and I mentioned I

had been drawing up pretty well also because

I was building a home, and the general

understanding was that there wasn't too much

in the partnership account."Powell testified: "Personally, I forgot to

mention anything about the accounts

receivable and didn't consider them or

anything like that, and I had no reason to go

ahead and estimate them because they

weren't due." Apparently Powell was

exceedingly generous in his inclusion in

Homer's estate of accounts receivable which

were not earned until a considerable period of

time following Homer's death. That Vivian

failed to estimate with detailed accuracy the

value of accounts receivable which were

largely unearned at the time does not show

that she lacked understanding of her interest

in the partnership to the extent of the

community property involved. The very

discussion of the standing of the partners'

drawing accounts indicates that she

considered the partnership interest in making

her will.

Lenore also points to the omission from the

will of provision for Homer and for Vivian's

brothers as proof that Vivian did not have in

mind the persons who were the natural

objects of her bounty. [14] However, as was

said in Estate of Nolan, 25 Cal.App.2d 738,

741 [78 P.2d 456], the "unnatural" provisions

of a will are "an element supporting an

inference of undue influence when the

testament is attacked on that ground, and

(are) of like value when it is claimed that the

testator was laboring under hallucinations

which had caused him to make an

unreasonable or unjust discrimination against

some of his heirs at law. But, when mental

incapacity is the ground of attack, the

dispository clauses of the will are not, in and

of themselves, evidence of mental incapacity

which would overcome the presumption of

sanity and competence."

When Vivian discussed the provisions of her

proposed will with Powell, she told him that

she made no provision for Homer because

she did not expect him to live long. Powell

mentioned her brothers. Vivian answered,

"You know how I feel about Waldo after he

got my share of my mother's estate." As to

Earl, she said that he was taken care of. As

Powell knew, Earl was an incompetent in a

Veterans' Administration hospital.

[15] Lenore points to the testimony of Anne

Norby as proof that Vivian did not have in

mind the natural objects of her bounty.

Concerning a conversation with Vivian a day

or two after Homer's death, Mrs. Norby said

that she asked whether Vivian had notified

her brothers. According to Mrs. Norby, "she

just looked at me and said, 'I don't know

where they are.' She added that she hadn't

heard from one for seven years." Such

testimony does not show that Vivian did not

have her brothers in mind. At most, it

explains in part her failure to provide for

them and indicates that there was an

estrangement of long standing.

[16] Lenore further argues that the will was

"unnatural" because it omitted beneficiaries

who had been included in earlier wills. These

beneficiaries were not related to Vivian, and

were not the "natural objects of her bounty"

in the generally accepted sense of the term.

That Vivian changed her will, as she had a

right to do, is not evidence of mental

incapacity, although her act in that regard

may be relevant upon the issue of undue

influence. At most, this change is "an

additional circumstance entitled to some

weight in connection with the other facts

shown." (Estate of Strachan, 166 Cal. 162,

166 [135 P. 296].)

[17] Upon the issue of undue influence, it is

argued that Vivian's condition was such as to

permit a subversion of her freedom of will,

that Madge had an opportunity to control the

testamentary act and was active in procuring

the execution of the will, that the provisions

of the will are unnatural and at variance withpreexisting testamentary intentions, and that

the Tuckers benefited unduly by the

provisions of the will. Again accepting as

true all of the evidence most favorable to

Lenore's position, there was no confidential

relationship between Vivian and Madge.

Lenore does not claim that there was such

relationship, and, in view of the testimony

which Lenore introduced showing Vivian's

distrust and dislike of Madge, Lenore could

not well claim that a confidential relationship

existed. (Estate of Llewellyn, 83 Cal.App.2d

534, 562 [189 P.2d 822, 191 P.2d 419].) [18]

Consanguinity of itself does not create a

fiduciary relationship. (Estate of Llewellyn,

supra.) A like rule must apply to affinity.

Lacking any confidential relationship, there

is no presumption of undue influence.

[19] The indicia of undue influence have

been stated as follows: "(1) The provisions of

the will were unnatural. ... (2) the dispositions

of the will were at variance with the

intentions of the decedent, expressed both

before and after its execution; (3) the

relations existing between the chief

beneficiaries and the decedent afforded to the

former an opportunity to control the

testamentary act; (4) the decedent's mental

and physical condition was such as to permit

a subversion of his freedom of will; and (5)

the chief beneficiaries under the will were

active in procuring the instrument to be

executed." (Estate of Yale, 214 Cal. 115, 122

[4 P.2d 153].) These, coupled with a

confidential relationship between at least one

of the chief beneficiaries and the testator,

altogether were held "sufficient to shift the

burden to the proponents of the will to

establish an absence of undue influence and

coercion and to require the issues to be

determined by the jury." (Estate of Yale,

supra, p. 123.)

In Estate of Graves, 202 Cal. 258, 262 [259

P. 935], it was said that the following facts,

among others, are recognized as indicative of

undue influence: "The relations between

appellant and the decedent afforded to

appellant an opportunity to control the

testamentary act; the decedent's condition

was such as to permit of a subversion of her

freedom of will; the appellant was active in

procuring the instrument to be executed. In

addition, appellant unduly profited as

beneficiary under the will. While none of

these circumstances, standing alone, has the

effect of creating a presumption against the

validity of the instrument, their probative

force, in combination, is to impose upon the

proponent the obligation of presenting

evidence of volition, and to make the

question as to undue influence one of fact for

the jury's determination."

[20] Conceding that the provisions of

Vivian's will were unnatural, that its

dispositions were at variance with Vivian's

preexisting testamentary intentions, that

Madge had an opportunity to subvert Vivian's

will and that Vivian's condition was such as

to permit of a subversion of her freedom of

will, and that Madge and her husband

benefited by the provisions of the will, there

still is no proof of undue influence. Evidence

of activity by Madge in procuring execution

of the will is entirely lacking.

[21] Active participation in procuring the

execution of the will cannot be inferred from

the fact that Madge accompanied Vivian to

Powell's office, in the absence of any

indication that Vivian went there at Madge's

instigation or request, or that Vivian was not

acting entirely in accord with her own desire.

(Estate of Morcel, 162 Cal. 188, 197 [121 P.

733]; Estate of Easton, 140 Cal.App. 367,

376 [35 P.2d 614].) [22] Lenore suggests that

the purported holographic will which Vivian

took to Powell had been dictated by Madge.

In that connection she points to Powell's

opinion that its legal sufficiency was beyondVivian's capacity and assumes that the will

was written after Homer was admitted to the

hospital. The inference that the holographic

will was composed during the period that

Madge was staying with Vivian has no

support whatever in the evidence. There is no

showing as to when the holographic will was

composed or dated.

[23] Lenore also points to testimony that

Vivian's friends were requested by Madge

not to visit her or to talk to her on the

telephone as evidence of Madge's activity in

procuring the will. The most that can be

inferred from the testimony is that Madge

attempted to protect Vivian from visitors

during a period when she was under stress.

Vivian did have visitors, and did talk to

callers on the telephone. Once, Madge

suggested to a caller that she should "wait a

while" before visiting. At one time, a visitor

found no one at home, or a telephone call was

unanswered. There is no testimony that any

friend was flatly denied permission to see or

talk to Vivian.

[24, 25] To overturn a will on the ground of

undue influence, not only must there be

evidence of activity on the part of the

beneficiary, it also "is necessary to show that

the influence was such as, in effect, to destroy

the testator's free agency and substitute for

his own another person's will. ... Evidence

must be produced that pressure was brought

to bear directly upon the testamentary act ...

mere opportunity to influence the mind of the

testator, even coupled with an interest or a

motive to do so, is not sufficient." (Estate of

Arnold, supra, p. 577.)

"The unbroken rule in this state is that the

courts must refuse to set aside the solemnly

executed will of a deceased person upon the

ground of undue influence unless there be

proof of 'a pressure which overpowered the

mind and bore down the volition of the

testator at the very time the will was made.' "

(Estate of Gleason, 164 Cal. 756, 765 [130 P.

872]; Estate of Carithers, 156 Cal. 422, 428

[105 P. 127].) No such showing is made by

the evidence in this case.

[26] The ruling denying the motion for

judgment notwithstanding the verdict being a

nonappealable order, the purported appeal

therefrom is dismissed. (Estate of Green, 25

Cal.2d 535, 545 [154 P.2d 692]; Estate of

Frank, 102 Cal.App.2d 126, 132 [226 P.2d

767]; Prob. Code, 1240.) The judgment

denying probate of the proposed will is

reversed.

[ * * * concurrence and dissent omitted * * *]

[fn. *] *. A hearing by the Supreme Court was granted

on Sept. 7, 1951.