COFFEY'S

PROBATE DECISIONS.

ESTATE OF CLARA HARRIS, DECEASED.
[No. 2,853; decided November 18, 1908.]

Will Contest-Nature of Proceeding.-The contest of a will is not a civil action; it is a special proceeding of a civil nature, and not subject, except as to the mode of trial, to the provisions of part 2 of the Code of Civil Procedure.

Administration.-Proceedings for the Settlement of the Estate of a decedent, and matters connected therewith, are not civil actions within the meaning of the Code of Civil Procedure, sections 392-395, nor within the meaning of section 15 of article 1 of the constitution.

Guardians Classes and Definitions.-Guardians are either general or special; a guardian of the person, or of all the property of the ward within the state, being a general guardian, and all others being special guardians.

Guardian Ad Litem-Appointment in Will Contest.-Where the mother of minors who is their general guardian has no interest adverse to them, there is no occasion for appointing a guardian ad litem to represent them in a will contest.

Will Contest-Pleading Unsoundness of Mind.-If unsoundness of mind is relied upon in a will contest, it is sufficient to state that the deceased at the time of the alleged execution of the proposed paper was not of sound and disposing mind.

Will Contest-Pleading Fraud and Undue Influence. When the grounds of a contest embrace duress, fraud, undue influence, or execution of a subsequent will, such matters not being ultimate facts, but conclusions of law to be drawn from facts, must be pleaded.

Will Contest.-In Pleading Fraud the Facts must be Clearly stated, so that the court may determine therefrom whether the charge is well founded.

Will Contest-Injustice or Unnaturalness of Gifts.-A will cannot be contested on the ground that it is foolish, unnatural, capricious or unjust.

Will Contest.-In Pleading Fraud and Undue Influence it is not sufficient to state the nature of the fraud and undue influence, but the facts should be alleged; and they should be stated with certainty and expressly connected with the testamentary act.

Will Contest.-Allegations of Fraud and Undue Influence should be as positive, precise and particular as the nature of the case will allow. The mere fact that the beneficiary had an opportunity to procure a will in his own favor or that he had a motive for the exercise of undue influence, does not raise a presumption of its exercise. Such exercise must be directly pleaded as bearing upon the testamentary act.

Will Contest-Evidence of Undue Influence.-The fact that the proponent of a will was the son of the testatrix and lived in the same house with her for years, and acted as her agent in certain business affairs, does not import fraud or undue influence. It may have afforded an opportunity coexistent with a motive, but the law does not presume, from the mere fact that there was an opportunity or a motive for its exercise, that undue influence was exerted.

Will Contest.-Undue Influence, in Order to Invalidate a will, must be such as to destroy the free agency of the testator at the time and in the very act of making the testament; it must bear directly upon the testamentary acts.

Will Contest.-The Facts Constituting the Cause of Action in a will contest should be stated in ordinary and concise language.

Will Contest-Manner of Pleading.-Under Our System of Pleading facts only must be stated. This means the facts, as contradistinguished from the law, from argument, from hypothesis, and from the evidence of the facts. Those facts, and those only, must be stated, which constitute the cause of action or the defense.

Will Contest-Pleading Undue Influence.-An allegation that influence was overpowering or that the testatrix was unable to resist, without the recital of the facts supporting such conclusion, is not sufficient.

Will Contest.-An Allegation that "Contestants are Informed and Believe" that a certain event occurred is not positive. The averment must be direct, although it may be based on such information and belief. The fact itself must be alleged in set terms.

Will Contest.—Allegations of Fraud Should State the Facts sufficient to constitute the fraud; otherwise a special demurrer will be sustained. Testamentary Capacity-Manner of Acquiring Property.-Persons contesting a will may introduce evidence of the manner of acquisition of the property disposed of in the will, as bearing in some degree, however remotely, on the question of testamentary capacity.