Counsel for respondent herein, in their petition for a rehearing, among other things, say: "Consciously or unconsciously, by the decision of this court, rendered in the above-entitled cause, the rules established by the supreme court seem to be reversed and set aside, and a new rule, not supported by any authority except this opinion, declared in place thereof." They then cite and quote from the following cases to demonstrate how far wide of the mark our former opinion went in the enunciation of the rules governing the determination of a motion for nonsuit on the close of the case for plaintiff: In re McDevitt, 95 Cal. 33, [30 P. 101]; In reLangford, 108 Cal. 613, [41 P. 701]; In re Kaufman, 117 Cal. 295, [59 Am. St. Rep. 179, 49 P. 192]; Estate of Nelson,132 Cal. 189, [64 P. 294]. An examination of the foregoing cases will show that, either "consciously or unconsciously," counsel have permitted themselves to be led into what appears to us to be an inexcusable misapprehension of the nature of the question presented by a motion for a nonsuit, for, obviously, the cases cited have no more application to the question decided in this case than the code of Hammurabi would have to the solution of the much mooted question *Page 338 whether Peary or Cook was the first to discover the long lost North Pole. In each of those cases the case had been tried on the merits, a jury having passed upon the facts, and the appeal was from the judgment entered upon the verdict or an order denying a new trial or from both, and of course, the facts could not be reviewed unless the evidence was of such a character as to present a question of law.
In the case at bar, the complaint of the appellant is based solely upon the ground (and the appeal here could present no other ground for its support) that the court committed an error of law in declaring that, as a matter of law, the facts produced by plaintiff were not of sufficient probative value in the proof of the issues tendered by the contest to justify the submission of the case to the jury. It is elementary, as we tried to show in the original opinion, that a motion for a nonsuit presents a question of law pure and simple. No question of conflict of evidence can arise on such motion, for the facts which appear to have been proved by the evidence must be assumed to be true by the court in deciding the motion, and if, as so viewing the evidence, there appear sufficient facts to make out a prima facie case in favor of contestant, the court has absolutely no right to take the case from the jury, even if there is an abundance of evidence tending to sustain the will or disprove the facts established in behalf of contestant. Indeed, the authorities all say that evidence in conflict with testimony favorable to the contestant must be disregarded. We may remark that if, upon the evidence presented by this record, the case had gone to the jury and a verdict had been returned favorable to the contestee, we are not prepared to say but that the evidence would be sufficient to support the verdict. And in that case only would the cases cited by counsel be in point. But, as stated, the sole question here is, Was the court justified in declaring, as a matter of law, assuming, as it was bound to do, that all the facts in favor of contestant were true, that a prima facie case was not made against the validity of the will? An examination of the record can justify no other answer than that given in the decision of the case.
We find it to be true, as counsel contend, that we were not precisely correct in saying in the former opinion that the deceased was often heard to say that he desired that his *Page 339 sister in Ireland come to his home and take care of him. What he did say was that, should he send for his sister, she would come, but that he "would rather be alone." But the inaccuracy is immaterial, since the only purpose of referring to that evidence was to disclose that he was on affectionate terms with his near relatives living in Ireland. Other testimony given on this point tends to show the fact of the friendly relations between himself and said relatives equally as strongly as the inaccurate version of the testimony as given in our opinion. Indeed, there is an abundance of evidence in the record, independent of that which counsel say we inaccurately quoted, showing that the relations between deceased and his relatives were of the most friendly character at all times.
Counsel further say in their petition: "The statement by the court in the opinion, also, that he (Daly) was but slightly acquainted with Mrs. Wedemeyer, is also contrary to the testimony. The only testimony relating to this question is thatof Mrs. Sanders on page 107 of the transcript, and we submitthat this does not sustain the court's conclusion, while Mrs.Wedemeyer's testimony proves that they had been acquainted forsome time." (Italics ours.) The foregoing only furnishes another illustration of the many to be extracted from their petition of a "conscious" or "unconscious" failure on the part of counsel to distinguish between a review of a judgment on a nonsuit and a judgment on the merits. As we have shown to be elementary as a rule governing the determination of a motion for a nonsuit on the close of plaintiff's case, where there is some testimony in proof of a fact in favor of plaintiff or contestant, such testimony must be assumed by the court to tell the truth concerning such fact.
The testimony of Mrs. Sanders was that the deceased had said to her, shortly before he was taken to Mrs. Wedemeyer's, that he had very slight acquaintance with the latter, and it is very manifest, under the rules applicable to motions for a nonsuit made on the conclusion of a contestant's or plaintiff's case, Mrs. Sanders' testimony must be accepted on that point and that of Mrs. Wedemeyer contradictory thereto disregarded.
We may here state that we did not undertake nor pretend to recite all the evidence, or even give the substance of all the evidence, in the opinion originally filed. The record discloses *Page 340 an abundance of circumstances, to which we did not specifically refer, from which the jury would have been justified in finding against the validity of the will. For instance, the witness Kelley, of whose testimony we made no specific mention in the opinion filed herein, said that he had known the deceased ever since he (deceased) located at Cotati; that the two men often exchanged visits and carried on conversations; that, said the witness, "I think he always was a man of rather weak mind, not strong. During the ten years I knew him he had the habit of going back and restating his conversations."
The fact that deceased was, when making the alleged will, surrounded by persons who were not his close personal acquaintances, is of no small significance in determining, from all the circumstances, whether he was acting on his own independent judgment at that particular time. In short, as the situation, as presented by the record, is well summed up by counsel for appellant, "in the case at bar are found the elements of weak mind, a will made upon a death-bed, surrounded by those having an influence or authority over him, want of independent advice," to which may be added the fact that he made the will at the home of the sole devisee.
We can see no possible ground upon which it may in justice or reason be held that the court did not err in its order granting the motion of the contestee for a nonsuit and thus precluding a determination of the issues upon the merits of the case.
Rehearing is denied.
Chipman, P. J., concurred.
Burnett, J., concurred in the judgment.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 7, 1911. *Page 341