[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 416 This is an appeal from an order of the superior court of the city and county of San Francisco admitting the will of deceased to probate and appointing Caroline Ford executrix thereof. The widow of deceased and four others, claiming to be brothers and sisters of deceased, contested the probate of the will, of whom only the widow, Catherine Latour, appeals. In her written grounds of opposition *Page 419 to the probate contestant alleged that the alleged will was not subscribed at the end thereof by the testator or by any person in his presence by his direction, that it was not declared by him to be his will, and that no subscribing witness signed his name as a witness at the request of the deceased or in his presence. She also alleged unsoundness of mind and undue influence. The proponent, Caroline Ford, answered, traversing all the objections, and the issues of fact thus raised were tried by a jury, which found that the name of deceased was subscribed to said instrument by one Crawford, in the presence of the deceased and by his direction, and upon all the other issues found in favor of the validity of the will.
1. It is claimed that the trial court erred in its rulings in giving and refusing instructions. The contention in this behalf is largely based on the theory urged by learned counsel for contestant that the burden of proof was on the proponent, especially upon the issues as to the due execution of the will. The trial court refused instructions drawn upon this theory, and instructed the jury that the burden of proof was upon the contestants, and that they must prove the issue of fact by a preponderance of evidence. This action of the trial court is fully sustained by the statute and the decisions of this court. Contestant concedes that it is probably true that, in the first instance, the burden of proof on an issue as to undue influence is on the contestant. This concession is warranted by the decisions, as would also be a concession that the same is true as to an issue on the question of mental unsoundness. (Estate ofBlack, 132 Cal. 392; Estate of Scott, 128 Cal. 57; Estate ofWilson, 117 Cal. 270; Estate of Gregory, 133 Cal. 131.) But no distinction is made by the statute between such issues and issues as to the due execution and attestation of the will. The issues that may be raised by the written opposition of the contestant, and the answer thereto of the proponent, are stated in section1312 of the Code of Civil Procedure, and among them we find issues as to mental competency, freedom from undue influence, etc., and due execution and attestation. The same section provides that on the trial of any of such issues "the contestant is plaintiff and the petitioner is defendant." In Estate *Page 420 of Dalrymple, 67 Cal. 444, one of the issues was as to the due execution of the will, and the contestant was compelled to proceed as plaintiff and introduce his evidence first as to all the facts put in issue by the opposition and the answer thereto. This court said: "There can be no reasonable ground to doubt that section 607 and section 1312, subd. 4, of the Code of Civil Procedure, as construed in the Estate ofCollins (Myrick's Prob. Rep. 73), constituted `on the trial the contestants plaintiffs, and the petitioner defendant.' The reason there given, that the matter is entirely controlled by the statute, seems to be conclusive. The court rightfully said `as to all matters involved in the issues raised by the contest, the contestant is plaintiff and must go forward.'" (See, also, Estate of Burrell, 77 Cal. 479 .) Whatever may be the usual practice in trial courts, we have been able to find nothing in any opinion of this court that is in conflict with the views expressed in Estate of Dalrymple, 67 Cal. 444 . The latest expression is in the opinion rendered in Estate ofGregory, 133 Cal. 131, in which Mr. Justice Temple, whose concurring opinion in Estate of Doyle, 73 Cal. 564, is much relied on by contestant, joined. It was there said: "So far as contested issues are concerned, the burden of proof is on the contestant; it devolves on him to allege and prove the facts on which he relies to prevent probate of the will; his evidence is first called for and first submitted, and not until he rests is the proponent called upon to submit any evidence; as to matters or acts necessary to a valid will not put in issue by the contest, the contestant has no voice; it is with the court to require the proofs from the proponent." As stated before, contestant relies very strongly upon the concurring opinion of Mr. Justice Temple in Estate of Doyle,73 Cal. 564. The learned justice admits therein that, as tothe issues involved in the contest, the contestant is plaintiff and must assume the affirmative, and that the burden of proof is upon him. He does, however, say that he thinks that the theory of the statute must be, that the contestbegins after the petitioner has made a prima facie case. Whether this be correct, it is unnecessary to here consider. It may, however, be suggested that there is nothing in the statute requiring any such order of proof. If the contestant fails to produce *Page 421 proof to support any particular ground of opposition, the issue as to the same should be withdrawn from the jury, and the court should determine upon evidence introduced before it, without the presence of the contestant, as to the existence of all facts essential to the probate of the will and not embraced in the issues submitted to the jury. Undoubtedly, so far as the contestis concerned, under the provisions of our statute, the contestant is the party who would be defeated if no evidence was given on either side. The burden of proof is therefore upon him. (Code Civ. Proc., sec. 1981)
But it is urged that under Melone v. Ruffino, 129 Cal. 514,1 contestant was not called upon to prove her negative allegations as to non-execution of the will. That case is not authority for the proposition that a party is never compelled to prove a negative allegation. It was held therein that the plaintiff was not compelled to prove his allegation of non-payment, and it was said that a negative allegation is to be proved only where itconstitutes a part of the original substantive cause of actionupon which the plaintiff relies. Such is undoubtedly the rule, entirely in accord with section 1869 of the Code of Civil Procedure, where it is provided that evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action is founded. Here, as in the case of an allegation of want of probable cause in an action for malicious prosecution, cited in the opinion in Melone v. Ruffino, the allegations as to non-execution were an essential part of the statement of the right on which contestant's cause of action was founded.
We are unable to see any good reason for our somewhat peculiar statutory provisions so far as a contest before probate is concerned, but we must take the law as we find it. As to the question under consideration, the statute makes no distinction between a contest before probate and a contest after probate, and section 1312 of the Code of Civil Procedure is in the article devoted to contests before probate.
Our conclusion as to the rule as to the burden of proof disposes of most of the points made by contestant relative to the instructions. The trial court required the proponent *Page 422 to make a prima facie case, following the suggestion of Mr. Justice Temple, in Estate of Doyle, 73 Cal. 564. This was done by the introduction in evidence of the deposition of the two subscribing witnesses, the proponent thereupon resting. No objection was made that a sufficient prima facie case had not been made, and the court was apparently satisfied with the showing. The contestant declined to introduce any evidence relative to any of the grounds of contest, and objected to the introduction of evidence in "rebuttal" by proponent, to support the will, stating: "We have offered no evidence, and I will say we do not intend to offer any evidence at the present stage of the case as to the execution of the will, or as to the soundness of mind of decedent, or as to the influence under which this will was made. We rest upon the testimony which the proponent presented on that subject when they rested their case, and we say that they can't reopen their case, after we notified them, and they produced their evidence. This is not rebuttal of anything." The court sustained contestant's objection to the introduction by proponent of further evidence in support of the will.
The only testimony, therefore, material to any ground of contest is that contained in the depositions of the subscribing witnesses to the will. Those depositions, having been taken to be used for all purposes on the trial, contained some evidence relevant to the issues made by the opposition and answer. It is claimed that the evidence was of such a character as to shift the burden of proof, and require the giving of certain requested instructions. One of these was to the effect that if the decedent was unable to speak articulately, and the only communication made by him to those around him consisted of signs made by him, the burden was on the proponent to prove that the decedent fully understood the meaning of the questions asked him and the purport and effect of the document, and consciously and purposely made signs which he intended to be understood as affirmative answers, and another stated that under such circumstances it was the duty of those engaged in the preparation of the will to put such questions or make such suggestions as would recall to his mind each particular person who, by reason of relationship or otherwise, had any natural claim upon his *Page 423 regard and bounty. These instructions were in line with the contention of contestant that the burden of proof was on the proponent. As to them it certainly cannot be held as a matter of law that merely because the testator is unable to speak articulately and is compelled to communicate by signs, the burden of proof shifts, nor can it be held that such circumstance makes it essential for the proponent to show that those engaged in the preparation of the will put the questions or made the suggestions specified. The jury was fully instructed by the court to the effect that before it could say that the decedent declared the instrument to be his will, it must be convinced that such declaration was made consciously and purposely, and with knowledge of what he was doing, and, further that it was essential to constitute a sound and disposing mind that the testator must have capacity to comprehend the extent of his property, and the nature of the claim of others than those to whom, by his will, he is giving his property, and also that he must have been at the time capable of recollecting who his relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.
As to the eighth requested instruction, it is sufficient to say that the mere fact that the testator was so enfeebled by sickness as to be unable to intelligently communicate his thoughts to others, except by signs in answer to questions, is not sufficient to shift the burden of proof as to mental competency. The only remaining requested instruction that demands consideration is that as to undue influence, wherein it was sought to have the court instruct the jury that if they found that the execution of the will was procured by the proponent, that she was not related to the testator or otherwise a natural object of his bounty, that at the time of the execution he was, through illness, entirely helpless and wholly dependent upon her for the care and attention which he required, and that, by this will, he excluded his wife and relatives from any share of his estate, then the burden of proof is upon the proponent to show that she exerted no undue influence over him which caused him to execute that will. Under the few facts appearing in the record, it is *Page 424 plain that the exclusion of the wife whom he had deserted more than twenty years before, from whom he had not heard and with whom he had no communication during all that time, and the exclusion of the other relatives toward whom he entertained no feeling of friendship, were entirely consistent with an absence of any undue influence. So also was the fact that the proponent was not a relative of the testator, for, so far as appears, there was no one else in the world for whom he cared at all, or to whom he was under any obligation.
There was no testimony that the proponent had ever personally made any suggestion to the testator as to the manner in which he should dispose of his property, and the only testimony as to her procuring the execution of the will was, that she sent for a lawyer and was, with others, present at the time of the execution of the will, and the lawyer asked him if he wanted to leave his property to proponent. It is also true that he was at the time, through illness, helpless and in proponent's home. We are of the opinion that these facts alone are not sufficient to entitle contestant to complain of the action of the court in refusing to give the instruction, especially in view of the fact that by her objection she prevented the proponent from making any further showing in support of the will, after she had closed her own case without proffering any testimony in support of any of her grounds of opposition. It must further be borne in mind that the will as executed was entirely in accord with repeated declarations of testator as to his intentions, before he was stricken with his last illness, to each of the subscribing witnesses.
2. It is claimed that the evidence is insufficient to justify the verdict. After a careful examination of the record, we are satisfied that there is sufficient evidence, in the absence of any counter-showing, to sustain the findings of the jury.
It may also properly be said that this objection comes with very poor grace from the contestant, who, by her objection, prevented the introduction of testimony in support of the will, which was properly offered after contestant had closed her case. In view of our conclusion as to the sufficiency of the evidence, it is unnecessary to consider a question *Page 425 which suggests itself, as to whether under such circumstances the contestant is in any position to raise such an objection.
3. It is further contended that the deceased was not a resident of the city and county of San Francisco at the time of his death, and that therefore the court below had no jurisdiction. There was no issue of fact made as to this in the lower court, and the objection was made for the first time after the order admitting the will to probate had been entered, by a specification in the bill of exceptions. While it is true that the jurisdiction to prove wills and grant letters testamentary is exclusively in the superior court of the county of which decedent was a resident at the time of his death, it is for the court to which the petition is addressed to determine from the evidence introduced before it whether or not the deceased did, as a matter of fact, reside in the county. Its finding in the matter is conclusive on the question of jurisdiction, except upon appeal, and cannot be collaterally attacked (see Estate of Griffith, 84 Cal. 107; In reEickhoff, 101 Cal. 604), whatever the fact may be as to residence, and herein lies the difference between this case and the cases cited by contestant, wherein the court had no power to entertain the proceeding or make the order. It has been held in this state that the superior court of the county in which the petition for letters of administration is first filed has exclusive jurisdiction to determine the question as to the residence of the decedent, and the courts of other counties must abide the determination of that court, which is reviewable only upon appeal. Here, it is true, the attack upon the jurisdiction of the court is made upon appeal, but it is made by a party who, without objection, submitted her contest to the court below, and who never made any objection to the jurisdiction of the court, or in any way questioned the truth of the allegation contained in the petition that the decedent was a resident of the city and county of San Francisco. While it is true that non-residence is not a ground of contest, it is clear that contestant could have legally made her objection on that ground in the lower court. This court will not upon appeal review the conclusions of a trial court as to facts essential to its jurisdiction, concerning which such court was vested with the power to hear and determine, at the instance of a party who has appeared in that court in the *Page 426 action or proceeding, and has omitted there to in any way urge his objection, but has proceeded therein upon the theory that the court had jurisdiction.
The remaining points made by contestant do not call for extended notice. Under the provisions of the will, the court had the power to direct the issuance of letters testamentary without requiring a bond, and we cannot say that it abused its discretion in so doing. The same may be said as to the action of the court in awarding costs against the contestant. We cannot see how contestant could have suffered any injury by being denied a separate trial as to her contest.
The order appealed from is affirmed.
Shaw, J., Van Dyke, J., and McFarland, J., concurred.
1 79 Am. St. Rep. 127.