said James McGinn, by Johanna McGinn, the surviving wife of said James McGinn, and Ellen Frances McGinn, the daughter of said James McGinn, and Joseph McGinn, or by either of them?

Fourteenth Issue. Was said James McGinn induced to sign said instrument, or to acknowledge or publish or to declare the same to be his will, or to make any dispositions of his property therein contained, by the, or any, fraud practiced upon him, the said James McGinn, or committed by said Johanna McGinn and Ellen Frances McGinn and Joseph S. McGinn, or by either of them?

Fifteenth Issue. Was the said James McGinn, at the time when the said instrument was signed by him, and by said James F. Tevlin and James F. Smith, and prior and subsequent thereto, laboring under or affected with or by any delusion or illusion as to Mary Clements, Emma Burns, P. H. McGinn, James McGinn, John McGinn or Thomas McGinn, or as to any one of them, or as to the filial affection of them, or any one of them, towards him?

Sixteenth Issue. Did said James McGinn, subsequent to the signing of said instrument by said James F. Tevlin and James F. Smith, duly make, publish and declare another instrument in writing as his last will and testament, wherein and whereby he revoked and annulled any and all former wills made, signed and executed or published by him?

Seventeenth Issue. Did said James McGinn, subsequent to the said time when said instrument was signed by him and by said James F. Tevlin and said James F. Smith, revoke the said instrument?

ESTATE OF BRIDGET BYRNE, DECEASED.
[No. 9,383; decided December 14, 1889.]

Account.—Sections 1632 and 1633 of the Code of Civil Procedure, as to the settlement of accounts of administrators, do not apply to an exhibit filed pursuant to section 1622, but to an account filed under section 1628.

Account.-An Order Settling an Annual Account is Final and Conclusive as to all parties in interest, subject only to appeal, and cannot, after the time for appeal has passed, be placed again in a position for appeal by motion to set it aside.

Account Setting Aside for Fraud.-Allegations of fraud give the superior court, sitting in probate, no jurisdiction to vacate an order settling an account on motion, but such charges of fraud are the subject of an independent proceeding in equity.

This was an application, filed September 12, 1889, to set aside an order, made on August 14, 1885, settling an account of the administrator.

King & Saufley and W. F. Sawyer, for the Petitioner.

Thos. F. Barry, contra.

COFFEY, J. I have made a careful examination of the briefs of the respective counsel for applicant and respondent in this matter, and have come to the conclusion that the order settling the account is final and appealable and conclusive as to all parties in interest: Code Civ. Proc., secs. 1637, 1908; Reynolds v. Brumagim, 54 Cal. 257.

The counsel for the petitioner say, on page 7 of their reply brief, that they can see no difference between an order settling an administrator's account required under Code of Civil Procedure, sections 1622 to 1624, and an order settling an annual account under Code of Civil Procedure, section 1628. This court has decided frequently that an order settling the account or exhibit under section 1622, Code of Civil Procedure, does not signify, as there is no provision made for a judgment of the court upon any such exhibit, it being simply for the information of the court, and, therefore, the provisions of the Code of Civil Procedure, sections 1632 and

1633, as to the settlement of accounts of an administrator, do not apply to an account or exhibit under Code of Civil Procedure, section 1622, which is to be made six months after the appointment of an administrator. The decision of this court in the Estate of Caroline Fisher has no application to the matter now before the court, as the "experimental account," so called, in that case was presented merely to raise certain issues for the purpose of obtaining from the court directions to the executors as to their duties in the premises.

The order settling the annual account in this case was the subject of appeal to the supreme court (Code Civ. Proc., sec. 963), and cannot be placed again in position for appeal by a motion to set it aside: Coombs v. Hibbard, 43 Cal. 453; Dorland v. Cunningham, 66 Cal. 484, 6 Pac. 135; Tripp v. Santa Rosa St. R. R. Co., 69 Cal. 631, 11 Pac. 219.

The allegations of pretended fraud give this court no jurisdiction to vacate said order settling the account. They are. if true and sufficient, the subject of an independent proceeding in a court of equity: Estate of Hudson, 63 Cal. 454; Dean v. Superior Court, 63 Cal. 474; affirmed, In re Cahalan, 70 Cal. 605, 12 Pac. 427; Estate of Maxwell, 74 Cal. 384, 16 Pac. 206. These cases are conclusive on the point that the order settling the account of the administrator is not assailable in this court in the manner attempted, and that if this court should set aside the order its action would be a nullity.

As to so much of the application as attacks the validity of the order settling the annual account this proceeding cannot be sustained, as the court concludes it has not the power or jurisdiction to set aside the order made heretofore settling the first annual account; but, with respect to so much of the petition as requires the administrator to file his final account, the court is of opinion that the petition is sufficient; and the demurrer as to that part is overruled, and counsel are instructed to draw an order upon the administrator to show cause why he should not file his final account.

The Settlement and Allowance of the Account of an Executor or Administrator, if not appealed from, is conclusive as to all matters and items contained in it and upon all persons interested, saving to persons under disability the right to reopen the account or proceed against the executor or administrator at any time before final dis

tribution. In this respect there is, in general, no difference between a final and any other account. Once settled and approved, accounts can be questioned only on direct attack by motion to open, or other like remedy in the superior court, or on appeal. They are not subject to collateral attack: 1 Ross on Probate Law and Practice, 793. Courts of equity, however, not infrequently review the accounts of administrators and guardians, on the ground of fraud or mistake, after the time for relief on motion or by appeal has passed: See the note to Estate of McLaughlin, 1 Cof. Pro. Dec. 263.

ESTATE OF ALEXANDER BLANC, DECEASED.

[No. 11,082; decided May 5, 1892.]

Wills Testamentary Capacity.-A person is of sound and disposing mind who is in the full possession of his mental faculties, free from delusion, and capable of rationally thinking, acting and determining for himself. Weakness of mind is not the opposite of soundness, but is the opposite of strength of mind, and unsoundness is the opposite of soundness. A weak mind may be a sound mind and a strong mind may be unsound.

Wills. Undue Influence Consists in the Use, by one in whom a confidence is reposed by another, who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him, or in taking an unfair advantage of another's weakness of mind, or in taking a grossly oppressive or unfair advantage of another's necessities or distress.

Wills. Lawful or Unlawful Influence, in procuring the execution of a will, discussed and distinguished.

Wills-Undue Influence, What Constitutes.-The influence exerted over a testator to avoid his will must be of such a nature as to deprive him of free agency, and render his act obviously more the offspring of the will of others than his own; and it must be specially directed toward the object of procuring a will in favor of particular parties and must be still operating at the time the will is made.

Wills-Undue Influence, What Constitutes.-Influence and persuasion may be fairly used on a testator; and a will procured by honest means, by acts of kindness, attention and persuasion which delicate minds would shrink from, will not be set aside on that ground alone. The influence to vitiate a will must not be the influence of affection or attachment.

Wills-Undue Influence, What Constitutes.-In order to avoid a will on the ground of undue influence, it must be shown that the in

fluence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity that could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection, the desire of gratifying the wishes of another, the ties of attachment arising from consanguinity, or the memory of kindly acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.

Alexander Blanc died on June 14, 1891, leaving a widow, a sister, the children of a deceased brother and the children of a deceased sister.

On June 22, 1891, the widow filed a petition for probate of the will of decedent, which was dated June 12, 1891. The will was admitted to probate on July 6, 1891. In this will the widow and one of the nephews were named as the prin. cipal legatees and devisees.

In February, 1892, the sister and several of the nieces and nephews of the decedent filed petitions for the revocation of the probate of the will, and alleged, as grounds of contest, that the testator was of unsound mind, and that the will was made by undue influence of the widow, and of the nephew who was named in the will as a devisee.

These contests were tried before a jury, and on May 5, 1892, the court instructed the jury and the latter rendered a verdict sustaining the will.

Henry H. Davis, for certain of the contestants.

Dunne & McPike, of counsel.

Jones & O'Donnell, for the other contestants.

W. M. Cannon, for respondents.

H. N. Clement, of counsel.

COFFEY. J. (Addressing the Jury.) 1. Whenever nine of your number agree on an answer to an issue, it becomes your verdict on that issue. Your verdict must be in writ