is contrary to that of his ward, or where he occupies a dual or duplex position, as, for instance, where he is simultaneously administrator and guardian, manifestly he cannot legally occupy these antagonistic attitudes. So far as general uses are concerned, the two situations are not necessarily incompatible; but if by reason of circumstances, as an attempt by the administrator to divest the title of the infant heir by a sale, under a probate order, of lands to pay debts of an intestate, his position became hostile to the infant, he could not represent the ward: Townsend v. Tallant, 33 Cal. 52. The minor then having no guardian quoad the petition, it became the duty of the court, before acting, "to appoint some disinterested person his guardian for the sole purpose of appearing for him and taking care of his interests." This was the language of section 159 of the old probate act; but these words are not to be found in section 1539 of the Code of Civil Procedure, which is the statute that superseded the old act. The present probate law mentions "any general guardian of a minor so interested," and so differs from the former.

The code, with characteristic brevity, declares that 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: Civ. Code, 236-240; 2 Ross' Probate Law and Practice, 936.

Now, if the general guardian is adverse in interest, as in Townsend v. Tallant, 33 Cal. 52, above cited, although the language of the statute has been changed by the code, it should seem anomalous that the infant may not be protected by a special guardian with functions limited to the particular action or proceeding in probate, whether it be a sale of real estate, as in that case, or an application for the revocation of a probate of a will, as in the matter under advisement. Such a provisional order was made in a contemplated contest in the Estate of Robert P. Hastings, Deceased, at the instance of the former Judge Serranus Clinton Hastings, where the widow. was executrix of the will and guardian of the minor, although this court questioned the technical power, yet it deemed it advisable for the protection of the infant to make the special appointment.

So in this case the court might act in like manner; but inasmuch as the interests of the mother and minors are not adverse, there should seem to be no similar reason for a special guardian, as she could be appointed general guardian and in that way protect the legal rights of the infants.

I choose, however, to pretermit this point for the present and to pass to the main grounds of demurrer, formally overruling the objections stated in paragraphs 1 and 2 of demurrer.

Paragraph 3 of demurrer is addressed to the sixth ground of contest, to wit, the allegation on information and belief that the alleged will and testament of decedent admitted to probate is not her last will, and was never executed by her because, "as they are informed and believe, the said original will was destroyed by fire in April, 1906." This averment is technically ill in form, because it should be direct and pleaded absolutely as a fact. The physical destruction of the original will by fire in and of itself would not operate to prove the nonexecution of the instrument propounded, nor to sustain an implication of forgery of the latter. Counsel for contestant in support of this allegation claim that, in connection with their fourth ground of contest, that there is here a distinct charge of forgery, but this is not as clear to the court as to the counsel.

In stating the grounds of contest, if unsoundness of mind is relied on, 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; unsoundness is the ultimate fact to be found, and other causes are to go to the jury, from which they are to find, and the issue upon that subject is to be of the ultimate fact only; but when the grounds of contest embrace duress, menace, fraud, undue influence, due execution and attestation, subsequent will or the like, such matters, not being ultimate facts, but conclusions of law to be drawn from facts, must be pleaded, not in the language of the statute, but the facts (not evidence of the facts) relied on must be stated, and the issues relating thereto submitted to the jury, to the end that the court, either upon demurrer to the statement of the grounds of contest, or upon the verdict, may determine whether, as a matter of law, such facts so pleaded or found constitute a valid reason why the proposed

paper should not be admitted to probate. This course is plain, logical, direct, and is a certain guide to the court, to counsel, and to the jury; the other course leads to uncertainty as to what is relied upon, and to doubt as to what may be the basis of the verdict: Estate of Gharky, 57 Cal. 279.

The fourth "ground of contest" is a conclusion, and as such cannot be connected as a statement of fact with this sixth ground. Demurrer sustained as to the sixth ground of contest.

The count on fraud should be recast to correspond to the requirements of the code rules of pleading as interpreted by the supreme court. It is a well-known rule, says that tribunal, that in pleading fraud the facts must be clearly stated, so that the court may determine therefrom whether the charge is well founded: Estep v. Armstrong, 69 Cal. 538, 11 Pac. 56.

Counsel for contestants say that their pleading clearly states the facts of undue influence and fraud, "if forgery of a will is fraud." But there is no specific allegation of fraud.

It is urged that the will is unnatural as to the contestants; but that does not constitute a ground of opposition, and does not enter into the issue of fraud or undue influence. A testator of sound mind and free from restraint has a right to make a will, whether it be foolish, unnatural, capricious, or unjust: Estate of Donovan, 140 Cal. 394, 73 Pac. 1081; citing Estate of McDevitt, 95 Cal. 33, 30 Pac. 101, and Estate of Kaufman, 117 Cal. 289, 49 Pac. 192.

Counsel for contestants say in their brief under the head of "Fraud," that it is alleged that this will of May, 1902, is not the will of decedent; that the original will was destroyed by fire, and that the document on file was procured by the fraud of Lawrence Harris and Vogelsang & Brown, attorneys. Here, say counsel, is a distinct charge of forgery which is made to state a fact connected with the allegation not demurred to by proponents, namely, in paragraph 4: "That said alleged will is not the will of Clara Harris, deceased, and was never executed by her and was not her free act and deed."

Counsel for contestants say that the demurrer does not attack this allegation nor the allegation 5 which alleges that decedent in May, 1902, was incompetent to make a will.

As already seen, these allegations are assailed by the demurrants in their grounds 1 and 2, which have been formally overruled, although paragraph 4 is a conclusion, and paragraph 5 is subject to some slight verbal criticism as to its form. In the opinion of the court the facts constituting the alleged fraud on the part of proponent and the complicity of his attorneys are not stated with the particularity required by the authorities cited.

The terms of the charges are general, and not pointed to the act itself. It is not sufficient to state the nature of the fraud, undue influence, or fraudulent representations, but the facts should be properly alleged: Estate of Clark, Myr. Rep. 265. These facts should be stated with sufficient certainty and precision, and should be expressly connected with the testamentary act.

The cases cited by contestants are mainly upon the evidence required and the presumptions indulged and not upon the pleadings. The distinction between what is pleadable and what is probative may be difficult; but it must be observed according to all the authorities. It is quite possible to reconstruct this seventh ground of contest and free it from the objections advanced by the demurrer. The 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.

Ross v. Conway, 92 Cal. 632, 28 Pac. 785, relied upon by contestants, was a case of a spiritual adviser who employed an attorney and directed his conduct in concocting the documents disputed, and there were direct allegations connecting him in that confidential capacity with the execution of the instruments for the benefit of himself and his church. The question was whether he had used the influence which he had acquired over her by virtue of being her spiritual adviser for the purpose of procuring her to make such disposition of her property, and the court declined upon the proof to uphold the transaction. The supreme court very properly said that the influence which the spiritual adviser of one who is about to

die has over such person is one of the most powerful that can be exercised upon the human mind, especially if such mind is impaired by physical weakness, is so consonant with human experience as to need no more than its statement; and in any transaction between them wherein the adviser receives any advantage, a court of equity will not enter into an investigation of the extent to which such influence has been exercised. Any dealing between them under such circumstances will be set aside as contrary to all principles of equity, whether the benefit accrue to the adviser or to some other recipient who, through such influence, may have been made the beneficiary of the transaction. In such case the testatrix should have had independent advice and be at arm's-length with the beneficiary.

In the case under advisement the proponent was not a spiritual adviser, but a member of the family who acted in business affairs for the decedent, and it does not necessarily follow that his relation was such as to raise a presumption of undue influence, although evidence might establish that fact.

That he was her son 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 it was used, that undue influence was exerted, for it is not a presumption, but a conclusion from the facts and circumstances established by proof under the pleading.

The fact that the son transacted business as alleged is not of itself evidence of undue influence. Influence not brought to bear upon the testamentary act is not undue influence such as will operate to set aside a will on that ground. Undue influence must, in order to have such effect, destroy the free agency of the testatrix at the time and in the very act of making the testament. It must bear directly upon the testamentary act: Estate of Donovan, 140 Cal. 394, 87 Pac.

380.

The demurrer to the seventh ground of contest should be sustained.