In re Yoakam

Belcher, C. Emily R. Yoakam died in the county of Los Angeles, leaving an alleged last will, which was dated March 4, 1893. The respondents filed in the court below the said will and their petition, asking that the same be admitted to probate. / In due time the appellant appeared, and contested the probate thereof upon the grounds, among others, that its execution was procured by the undue influence of certain persons, none of whom were named therein as legatees or executors. A general denial of all the allegations contained in the written grounds of opposition was filed by respondents. By agreement, the issue as to the alleged undue influence in procuring the execution of the will was submitted to a jury, and by their verdict the jury found in favor of appellant on that issue. Subsequently, on motion of respondents, the court made and entered its order granting a new trial of the contest, and from that order this appeal is prosecuted. The notice of the motion for a new trial stated that the motion would be made upon the minutes of the court, and upon the ground that the evidence was insufficient to justify, the verdict. Appellant contends—and this is the only point made for a reversal—that' the notice did “ not properly or at all specify the particulars in which the evidence was alleged to be insufficient, as required by subdivision 4 of section 659 of the Code of Civil Procedure, and that the motion should therefore have been denied.” The specifications contained in the notice are as follows : “ The evidence was insufficient to justify said verdict in this: The evidence showed that the said alleged will was signed by the testatrix in the presence of the subscribing witnesses thereto on the fourth day of March, 1893, and that she, at that time, requested said subscribing witnesses to sign the same as witnesses, and that they signed the same on that day as such witnesses [505] at her request and in her presence; that the said decedent, at the time of the signing of the said alleged will, declared the same to be her will, and that she was at that time, and always, of sound mind, and competent to make a will, and that she was not at that time, or ever, under undue influence, or influenced by fraud; that there was no undue influence, or any influence, exerted at that time, or ever, over decedent in the making of said alleged will, or with reference thereto, by Dr. Hodge, Henrietta Davis, Minda Davis, D. W. Davis, or either of them, or by any one, and that the evidence shows that the said alleged will provides for an equitable distribution of the estate of the decedent among the proper subjects of her bounty, and is fair and just in its provisions.” The object of the specifications required by the statute is clearly to direct the attention of the court and adverse party to the particular point on which the evidence is claimed to be insufficient, and when this object is accomplished they will be held sufficient. (McCullough v. Clark, 41 Cal. 298; Eddelbuttel v. Durrell, 55 Cal. 279; Newell v. Desmond, 63 Cal. 242.) The specifications complained of are, in substance, not unlike those approved in Harnett v. Central Pac. R. R. Co., 78 Cal. 32, and as said in that case: “It would be difficult to state in more specific terms the particular points of insufficiency on which the moving party proposed to rely in its proceeding for a new trial.” In our opinion, therefore, they must be held sufficient to meet the requirements of the statute. Besides, the record contains no statement of any of the evidence given at the trial, and so far as we can know it may have been such as would have authorized the court, under the provisions of section 662 of the Code of Civil Procedure, to grant a new trial on its own motion, without any application therefor. But the rule is well settled that all intendments are in favor of the regularity of the action of the court below, and that [506] error will never be presumed, but must affirmatively appear in the record. We advise that the order appealed from be affirmed. Searls, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the order appealed from is affirmed. Harrison, J., Garoutte, J., Van Fleet, J. Hearing in Bank denied.