I dissent. There was a crucial question in this case which, in my judgment, the jury should have been permitted to answer. The question was not in the ease when the trial began. Interestingly enough, the allegations concerning it were added “to conform to proof,” yet a nonsuit was granted on the ground that they had not been proved. The question was this: Did Mrs. Johans on know the contents of the document which was probated as her will? The contention that she did not, constituted a valid ground of contest. Section 371 of the Probate Code, which follows closely the last half of former section 1312 of the Code of Civil Procedure, which it supplanted, serves to give us the *57grounds upon which a will may be contested (Estate of Latour (1903), 140 Cal. 414, 419 [73 P. 1070, 74 P. 441]). In addition to the more familiar grounds (incompetency, undue influence, and lack of due execution) we find that there may be raised: “Any other question substantially affecting the validity of the will.” Such a question is presented by the allegations of the amendment to conform to proof. As this conclusion has not been questioned by the respondents, has been “granted” for the purposes of the majority opinion, and seems to me to be both sound and soundly established, although barely touched upon in California, I content myself with these citations in its support: Estate of Eklund (1932), 186 Minn. 129 [242 N.W. 467, 468]; In re Reilly’s Will (1931), 139 Misc. 732 [249 N.Y.S. 152, 158]; Hogan v. Whittemore (1932), 278 Mass. 573 [180 N.E. 526]; In re Bose’s Estate (1939), 136 Neb. 156 [285 N.W. 319, 330]; and see review of evidence in Estate of Relph (1923), 192 Cal. 451, 461 [221 P. 361].
I agree with the explicit premises of the majority opinion, that the contestants had the burden of proof; they had to show, affirmatively, that the contents of the will were not known to Mrs. Johanson; that it was not enough to impeach the nurse and the attorney, the two subscribing witnesses and the only persons who testified to seeing Mrs. Johanson on the day the will was executed. There is, however, a premise implicit in the majority opinion, with which I do not agree. It is that an affirmative showing must be made by direct evidence ; that it may not be done by indirect evidence. If this were the law no contest could be successful where the execution of the. will was not witnessed by someone other than the subscribing witnesses. Moreover, it would make meaningless the well recognized rule that in examining the evidence upon the review of an order granting a nonsuit, every reasonable inference in favor of the contestant which the evidence permits must be accepted, and all contradictory inferences and contrary direct evidence must be rejected. (Estate of Burre (1940), 38 Cal.App.2d 518, 520 [101 P.2d 549]; and see many quotations in Estate of Ivey (1928), 94 Cal.App. 576 [271 P. 559].) At this point it should be further observed that as a jury may credit some statements of a witness whose declarations concerning other matters they disbelieve (People v. Smith (1940), 15 Cal.2d 640, 648 [104 P.2d 510]), so on *58the review of an order granting a nonsuit the portions of a witness’s story which favor the contestants should be accepted, and the unfavorable portions rejected.
Applying these firmly established principles there appears to me to be evidence of sufficient substantiality to have warranted the submission of the case to the jury on the ground of contest that Mrs. Johanson did not know the contents of the probated will. The jury would have been fully justified, had they been given the chance, in concluding that the stupor in which the doctor found Mrs. Johanson at 9:30 a. m. on February 8th, was fairly descriptive of her condition during February 6th. In the morning of that day both Mr. and Mrs. Roseland, good friends of Mrs. Johanson, were with her for fifteen minutes. They testified that they were of the opinion that she did not recognize them, and that her larynx moved but she was too weak to talk, nor did she move her hands or arms or turn her head. In the morning of the same day Mrs. Johanson’s twin sister and the latter’s husband called upon her, and found her in the condition described by the Roselands, except that, after ten minutes, in spite of Mrs. Johanson’s inability to speak, her sister heard the words: “Sister, here, sister, here.” Calling again in the afternoon, the sister was not recognized.
The picture before the jury was not that of a woman suddenly stricken. The doctor who found her in a stupor on February 8th at first thought that it might be due to the effect of a bromide, but “Her subsequent progress” led him to the conclusion “that she was actually suffering from multiple metastases in the brain.” Cancer spreading throughout her system over a period of months was bringing about a steady deterioration in her condition. Knowing how far gone she was on February 8th, and on February 6th, twelve jurors, bringing their combined experiences to bear upon the problem before them, might with reason have concluded that on Feb: ruary 4th, Mrs. Johanson, though not then advanced to the stuporous stage where she neither moved nor spoke nor recognized her friends, nevertheless was so weak and near the stuporous stage that she could not and so did not arouse herself to read or comprehend the two pages of a document she had never seen before, written in English, a language which she could read “a little.”
If the testimony of the attorney who drew the will had to be accepted by the jury then Mrs. Johansen’s inability to *59read it over and learn its terms would not necessarily be fatal to its validity. According to his testimony, he had called in the morning of February 4th at 9:30, although possibly rather than probably earlier, and learned what its terms were to be, so that, when he returned with the typewritten document in the afternoon, she could be said, in the absence of some evidence to the contrary, to have known its contents. But the jury could, with reason, have concluded that the facts were not just as he related them. In the first place, remembering the statement in his deposition that on two previous occasions Mrs. Johanson had told him that she was going to leave everything to Helen Smith, whom he knew well, they may have doubted more than just his uncertainty as to who the Helen was to whom she referred, that morning of February 4th, as, in a half hour’s conversation about her health and other matters, she told him, according to his story, how she wished her will drawn. They may have believed the nurse’s testimony, rather than his, concerning the half hour of events about 9:30 a. m. of February 4th, she having testified, from her chart, that “At 9 :30 she had some water. She was vomiting and her emesis was a yellow froth.”
The nurse, whose only patient was Mrs. Johanson, refreshing her recollection from the chart, made no mention of the visit of the attorney who testified to the drawing of the will unless it is included in her statement: “At 7 [p. m.] she was sleeping and had a visitor.” From the chart and the nurse’s testimony the jury could with reason infer that there was but one caller upon Mrs. Johanson on February 4th, and that he was the attorney who came with a prepared will, early in the evening, and that he had not been there before that day. According to his own testimony he did not read the document to her nor engage in any exposition of its terms. Whatever knowledge of its contents she had she acquired herself. The jurors, given the opportunity, would not have shocked reason had they determined that under all the circumstances Mrs. Johanson never did learn the terms of the document which became her witnessed will. The issue should have been submitted to the jury; it was error to grant the non-suit as to the ground of contest which was added to conform to proof.