HARRISON, J.-A document purporting to be the last will and testament of Pilar Calkins, deceased, by which she gave all of her property to her husband, Albert C. Calkins, and appointed his father, J. W. Calkins, the executor thereof, was presented for probate to the su perior court of the county of Santa Barbara by said J. W. Calkins. Prior to the day set for hearing the application for its probate, Eduardo De La Cuesta, a brother of the deceased, filed written grounds of opposition to its probate, to which the proponent made answer, and the issues presented by this contest were afterward tried by a jury. When the cause came on for trial, upon motion of the contestant, the names of Mrs. J. W. Calkins, Albert C. Calkins, and Mrs. Lily B. Parsons were added as defendants in the proceeding, the last two of whom filed a disclaimer of any interest therein. At the close of the testimony all of the issues, except those upon the claim of undue influence, menace, and fraud, were waived by both parties, and the following special issue was subinitted to the jury:

"Did the said Pilar Calkins, at the time of signing the instrument here offered for probate, sign or acknowledge the same under undue influence, duress, or menace of the defendants, or any or either of them?" To this issue the jury replied in the affirmative. The court thereupon rendered its judgment, denying probate to the will. A motion for a new trial was made by the proponent and the defendant, Albert C. Calkins, and, having been denied by the court, an appeal has been taken by them from both the judgment and the order denying a new trial.

1. The appeal from the judgment was not taken until more than sixty days after its entry, and for that reason must be dismissed. A motion has also been made on behalf of certain heirs at law of the deceased, who did not appear or become parties to the proceeding in the court below, to dismiss the appeal from the order denying a new trial, upon the ground that no service of the appeal has been made upon them; but upon the author

ity of the Estate of Ryer, 110 Cal. 556, this motion must be denied. (See, also, Garnsey v. Knights, 1 Thomp. & C. 259.)

2. We are of the opinion, however, that the evidence fails to sustain the verdict of the jury, and that the order denying a new trial must be reversed. We find in the record no evidence tending to show that the testatrix was subject to any menace, duress, fraud, or undue influence in the execution of her will, or that the document presented for probate is not in all respects the expression of her own volition. There is no evidence that any person ever spoke to her in reference to the manner in which she should make her will, or gave her any suggestions in reference thereto.

An

The will was drawn by Mr. Wright, an attorney in Santa Barbara, at the request of the testatrix, and in accordance with instructions given him by her, and it does not appear that he had ever seen her before she came to his office for the purpose of having her will prepared. On the day before it was executed, while she was on her way to his oflice for the express purpose of having him prepare it, she met him and requested him. to do so. Upon his asking her how she wished it prepared, she said to him that she desired to will all of her property to her husband, and gave him his name. appointment for the execution of the will was then made between them for the next day. On the next day she visited his office, and the will was read to her, and her attention drawn to the fact that she had not designated any person as executor, and that a blank had been left in the draft of the will for his name. When Mr. Wright asked her whom she desired to have as executor, she asked him if her husband could be executor, and as he started to write her husband's name in the will she stopped him, and after a moment's reflection said, "I think I will have father Calkins for executor," and directed him to put in the name of J. W. Calkins. Mr. Wright then wrote the name of the proponent in the place left in the draft for that purpose,

and the testatrix signed and executed the will in his presence and that of Mrs. Parsons, who thereupon signed their names as witnesses. Mrs. Parsons, the other witness to the will, is a sister of the testatrix's husband, and at the time the will was prepared was visiting at the house of her father, where the testatrix was then also visiting. In pursuance of an arrangement therefor, made at the instance of the testatrix on the previous evening, Mrs. Parsons took her to town in a buggy on the morning that she first saw Mr. Wright, and while on the way to his office they met him in the street. Mrs. Parsons then got out of the buggy, and withdrew from hearing until the testatrix and Mr. Wright had finished their interview. On their way home the testatrix, of her own accord, and without any inquiry upon the subject, informed Mrs. Parsons that she had given directions that her husband should have her property, and requested Mrs. Parsons to be a witness to the will. On the next day, Mrs. Parsons accompanied the testatrix to Mr. Wright's office, where the will was executed. Mrs. Parsons testified that she said nothing to the testatrix in reference to the will, and had no conversation about it with her. After its execution, the will was placed in an envelope by Mr. Wright, and given to the testatrix, and, in the evening, the testatrix gave the will to the proponent, and requested him to take care of it, and at his direction, placed it in a drawer in his room. The will remained in his custody until after her death. He testified that she never spoke to him about making a will, and that he had never spoken to her upon the subject, and had never heard her say anything on the subject, or heard anyone say anything to her in his presence, and that he did not know the contents of the document until after her death. Mrs. J. W. Calkins testified: "A few days before she went home she said, 'Mother, I want to make a will. What lawyer had I better go to?' I said, 'I guess Judge Wright.

good man, and gentle. He won't tire you.

He is a

Signify

your want and it will be sufficient.' She said nothing

about the kind of a will she wanted to make. I did not ask her. She never after mentioned a will to me, or I to her. I never in any way sought to influence Pilar in the making of a will. She returned to Zaca ranch about May 6th, and the conversation was a few days before. She had spoken to me before that time. Just after Mrs. Bergeron was married, she said, 'Mother, I want to make a will. My sisters, after they were married, made their wills to their husbands, and I would like to.' I simply answered as far as politeness required. I made some general remarks on the subject of wills-that some people felt nervous about a will; that they did not need to, and the subject dropped." There is no evidence of any attempt on the part of her husband to influence her in the disposition of her property, or that he had any knowledge of her purpose, or of the fact of making the will, until long after its execution. The claim of the contestant that the testatrix had no affection for her husband would rebut any presumption of undue influence on his part, as would also the claim that the testatrix had a hearty dislike for Mrs. J. W. Calkins.

The respondent does not claim that there is any direct evidence in support of the verdict outside of the evidence of certain declarations of the testatrix. The evidence chiefly relied upon by him consists of certain declarations made by her, which were admitted in evidence over the objection of the proponent. To the ex tent that these declarations at or prior to the making of the will, afforded any evidence bearing upon the state of the testatrix's mind at the time of the execution of the will-her mental capacity, the condition of her mind toward the object of her bounty, as well as toward the persons by whom she was surrounded, and the correspondence of her acts with the feelings and purposes entertained by her at the time she executed the willthey were properly admitted, and were entitled to consideration by the jury; but, to the extent that they purported to be declarations of the acts of others, or of her

own acts, they were but matters of hearsay merely, whose truth rested in the veracity of the utterer, and upon which there was no opportunity of cross-examination or of explanation by the party who had uttered them, and were not entitled to any weight by the jury, and cannot be considered for the purpose of sustaining their verdict. (Shailer v. Bumstead, 99 Mass. 112; Potter v. Baldwin, 133 Mass. 427; Bush v. Bush, 87 Mo. 480; Jones v. Roberts, 37 Mo. App. 163; Waterman v. Whitney, 11 N. Y. 157; Marx v. McGlynn, 88 N. Y. 357; Matter of Palmateer, 78 Hun, 43; Griffith v. Diffenderffer, 50 Md. 466.)

In order to establish that a will has been executed under undue influence, it is necessary to show, not only that such undue influence has been exercised, but also that it has produced an effect upon the mind of the testator, by which the will which he executes is not the expression of his own desires. The external facts constituting the exercise of undue influence must be established by other evidence than the declarations of the testator. His declarations are incompetent to show either that the influence was exercised, or that it affected his actions, and are inadmissible, except as they may illustrate his mental state, and give a picture of the condition of his mind contemporaneous with the declarations themselves. Whenever the condition of the mind is a fact which it is desirable to prove, it may be established by such evidence as is competent for that purpose. The mental condition of an individual is made manifest to others by his statements, declarations, conversations, as well as by his conduct, and, when the state of a testator's mind, at the time of executing the will, is the fact to be shown, his contemporaneous declarations or statements furnish the most satisfactory evidence of that fact. His statement of the effect that an act or suggestion of another produced upon him at some previous time is, however, only hearsay, while his statement of his feeling or disposition at the time of making the statement is but the expression in words of