held by the testatrix or by J. Gamble Carson in the presence of each other.

Re Donnely, 68 Iowa, 126, 26 N. W. 23; Re Dolbeer, 149 Cal. 227, 86 Pac. 695, 9 Ann. Cas. 795; Vallejo & N. R.

ceremony with the testatrix a year before her death, and she believed then and always thereafter that he was her husband, and made her will in that belief, yet he was not such

147 Pac. 238.

The evidence introduced was insufficient to show the exercise of any undue influence or fraud in the procurement of the will of Alpha O. Carson, deceased.

Re Donovan, 140 Cal. 390, 73 Pac. 1081; Re Ricks, 160 Cal. 450, 117 Pac. 532; Re Kaufman, 117 Cal. 288, 59 Am. St. Rep. 179, 49 Pac. 192; Re Benton, 131 Cal. 472, 63 Pac. 775.

Messrs. Daniel M. Hunsaker, Hunsaker & Britt, and Joseph P. Sproul also for respondents.

Olney, J., delivered the opinion of the court:

One Alpha O. Carson died, leaving a duly executed will by which she made bequests, aggregating some $35,000, to various relatives, some forty-one in number, and left the balance of her estate, something over $100,000 in value, to "my husband, J. Gamble Carson." She also nominated the last named as the executor of the will. The instrument was duly probated, and thereafter and within the statutory time certain of her heirs filed petitions, contesting its validity and asking that its probate be revoked.

The

residuary legatee, Carson, and some of the other beneficiaries, answered the petitions, and trial was had before a jury upon the issues so made. At the trial, the contestants were nonsuited, and judgment was entered denying the revocation of probate. From this judgment the contestants appeal.

The grounds of contest, as alleged, were three: First, a want of due execution; second, undue influence upon the testatrix, alleged to have been exerted by Carson; and, third, fraud upon her, alleged to have been likewise practised by him. The first ground was abandoned, and may be dismissed from consideration. The substance of both the second and third grounds was that, while Carson had gone through a marriage 17 A.L.R.-16.

ried to a woman who was still living and from whom he had not been divorced. It is also alleged that Carson knew he was not free to marry, and yet represented that he was, and that the testatrix's belief was induced by these false representations. It is also alleged that solely because of this belief she made the will in question, leaving the bulk of her estate to him.

Shortly before the matter came on for trial the contestants offered an amended petition for revocation, and asked for leave to file it. Their

application was denied, and the contestants complain of this ruling as error. When it came to the trial, the contestants were also prevented in very large measure from proving their case by rulings of the court excluding their evidence, and of these rulings they also complain. We think the rulings were in truth wrong, but it is apparent that if both the evidence introduced by the contestants and that which they sought to introduce, and were not permitted to, would together not have made out a case justifying the revocation of probate, the result would have been the same, and the errors mentioned were not prejudicial. The first and the most important point in the case, therefore, is, Was the evidence for the contestants, both that which they introduced and that which they sought to introduce, sufficient to justify a revocation of the probate of the will?

In discussing this point, it should be said at the outset that neither the contestants' petition nor their evidence makes out a case of undue influence. The only substantial difference between the second count of the petition, that alleging undue influence, and the third count, that alleging fraud, is that in one it is alleged that the will was executed

under the undue influence of Carson, consisting in his deceit, whereby he induced the testatrix to marry him and to assume and maintain the relation of wife and husband with him, and in the other it is alleged that the will was executed through his fraud consisting in the same deceit. There is no allegation of any subjugation of the mind or will of the testatrix to that of Carson, so that in making her will she was not acting freely upon the facts as she believed them to be. Such subjugation of the mind of the testatrix was

Will-undue influencedeceit as to relation of husband and wife.

an essential element of a case of undue influence, and had to be both alleged and proved. It was not alleged, as we have said, nor was there any evidence whatever introduced or offered tending to prove it. It is alleged that the testatrix and Carson lived in closest intimacy and association until her death, but there is no allegation that Carson abused the confidential relation which thus existed. The wrong alleged is the deceit whereby that relation was brought about and came to exist, and not any misuse of the relation as it did exist. The distinction between a case of undue influence and one of fraud is discussed at length in Re Ricks, 160 Cal. 467, beginning at page 480, 117 Pac. 539, and it is not necessary to repeat that discussion here. Suffice it to say that it is to the effect mentioned, that in order that there be undue influence there must be a subjugation of the will of one to that of another.

The present case is, then, one of fraud only. Being such, there is another point of which we would speak before taking up the sufficiency of the evidence. It seems to have been assumed that in case the contestants showed that the will was induced by the alleged fraud of Carson, the entire will would fail. We do not so under

-frand-effect on will as a whole.

stand. There is nothing, either in the allegations of the contestants' petition or in their evidence, which

would tend to show that any of the other beneficiaries were parties to Carson's alleged fraud, or that his fraud had any effect upon the testatrix's testamentary intentions other than to induce her to make him her residuary legatee and to appoint him as her executor. So far as the other beneficiaries are concerned, their situation is that the testatrix died leaving behind her a duly executed instrument, expressing her testamentary wishes in their favor unaffected by undue influence, fraud, or other vitiating circumstance. This means nothing more or less than that the will is perfectly valid as to them. The result is that it is only the portions of the will in favor of Carson whose probate should be revoked in case the contestants should succeed, the remaining portions continuing as a valid expression of the testatrix's testamentary intention. 1 Schouler, Wills, Exrs. & Admrs. § 248; 14 Cyc. 1149; Civ. Code, § 1272. If it were not possible to separate the portions affected by the fraud from those unaffected, it may be that the whole will would have to fail, but that question is not presented here, for the provisions in favor of Carson are easily and completely separable from the remainder. This being the situation, it is apparent that the beneficiaries, other than Carson, are not affected by the contest, however it may go, and are not interested parties to it.

contest.

Passing now to the sufficiency of the evidence, the evidence of the contestants,-giving to it its utmost effect, as we must do Appeal-effect of in view of the fact evidence-will that it is an order of nonsuit which is under review,was confined to showing that the testatrix married Carson under the mistaken belief, induced by his representations, which he knew to be false, that he was free to marry, that she made the will in the belief that he was her lawful husband, and that she was never undeceived upon this point. It also appears that the will was executed about a month after

the marriage, and, as we have said, that the parties lived together as husband and wife in closest association until her death at the end of a year. Are these facts sufficient to have sustained a possible verdict by the jury invalidating the will or those portions of it by which Carson benefits? If they are, the order appealed from must be reversed.

We have been cited to but two cases involving substantially the same state of facts as that presented here. They are those of Kenneth v. Abbott, 4 Ves. Jr. 803, 31 Eng. Reprint, 416, and Wilkinson v. Joughin, L. R. 2 Eq. 319, 12 Jur. N. S. 330, 14 L. T. N. S. 394, 35 L. J. Ch. N. S. 684. In each, the facts were practically identical with those of the present case, and in each a bequest in favor of the supposed spouse was held void for his or her deceit. As authorities to the contrary, we are cited by counsel for Carson to Moore v. Heineke, 119 Ala. 627, 24 So. 374, Re Donnely, 68 Iowa, 126, 26 N. W. 23, Smith v. Diggs, 128 Md. 394, 97 Atl. 712, Re Dries, 69 N. J. Eq. 475, 55 Atl. 814, Taylor v. Higgs, 202 N. Y. 65, 95 N. E. 30, Meluish v. Milton, L. R. 3 Ch. Div. 27, 45 L. J. Ch. N. S. 836, 35 L. T. N. S. 82, 24 Week. Rep. 892, and Rishton v. Cobb, 5 Myl. & C. 145, 41 Eng. Reprint, 326, 9 Sim. 615, 59 Eng. Reprint, 495, 9 L. J. Ch. N. S. 110, 4 Jur. 261. But in every one of these cases, with the exception of the last, there was either an entire lack of evidence that the deceased spouse was unaware of the true state of facts, or else it affirmatively appeared that he or she knew what it was; in other words, it did not appear that there had been any deceit. This, of course, distinguishes these cases at once from the present. In fact it is fairly implied in all that the bequest would have been void if the facts had been as the contestants claim they are here, and this is directly said in several of them. In the last case, that of Rishton v. Cobb, a bequest to a woman to whom the testator had paid court and made a proposal of marriage, which

had been refused, was held valid, although, unknown to the testator, she was not a single woman. The difference between such a case and the present is evident without discussion.

fraud-validity.

The weight of authority, then, is distinctly in favor of the sufficiency of the contestants' evidence to avoid a nonsuit, and such also we think is the rational view. Will-bequest The gross fraud up- secured by on the testatrix is, of course, apparent. According to the evidence, she was seduced by a marital adventurer into a marriage with him, which was no marriage in the eyes of the law because of the fact, which he concealed from her, that he had already had at least one, if not more, spouses, legal and illegal, who were still living and undivorced. There can be no question also that if the bequest to Carson were the direct fruit of such fraud, it is void.

The only question in the case, assuming the contestants' evidence to be true, as we must, is, Was the bequest in fact the fruit of the fraud? This is a question of fact which it was for the jury to Trial-jurydetermine; and, un- will as result of less it can be said

fraud.

that the jury could have reasonably reached but one conclusion concerning it, and that was that the bequest to Carson was not the direct fruit of his fraud, the evidence was sufficient to prevent a nonsuit.

Now a case can be imagined where, nothing more appearing, as in this case, than that the testatrix had been deceived into a void marriage and had never been undeceived, it might fairly be said that a conclusion that such deceit had affected a bequest to the supposed husband would not be warranted. If, for example, the parties had lived happily together for twenty years, it would be difficult to say that the wife's bequest to her supposed husband was founded on her supposed legal relation with him, and not primarily on their long and intimate association. It might well

be that if undeceived at the end of that time her feeling would be, not one of resentment at the fraud upon her, but of thankfulness that she had been deceived into so many years of happiness. But, on the other hand, a case can easily be imagined where the reverse would be true. If in this case the will had been made immediately after marriage, and the testatrix had then died within a few days, the conclusion would be well-nigh irresistible, in the absence of some peculiar circumstance, that the will was founded on the supposed legal relation into which the testatrix had been deceived into believing she was entering. Between these two extreme cases come those wherein it cannot be said that either one conclusion or the other is wholly unreasonable, and in those cases the determination of the fact is for the jury. Of that sort is the present.

Evidence

validity of will. -sufficiency.

We are not unmindful of the fact that the contestants offered no evidence other than that the testatrix had been tricked into the marriage; that in particular they did not offer any direct evidence that the inducing reason in her mind for her bequest to Carson was her belief that he was her legal husband, and that the bequest would not have been made except for that belief. But But such direct evidence is not necessary, and not improbably could not possibly be had. It is not an unreasonable inference, from the fact that she had been so recently married when the will was made, that she left the bulk of her estate to Carson because she believed he was her lawful husband, and would not have so left it if she had believed otherwise. Such inference, of course, was subject to being strengthened or weakened by evidence of other circumstances throwing light upon the matter, such as the views of the testatrix upon the sanctity of marriage, her harmonious or other relations with Carson, and the strength of her affection for him. But in the absence of such

circumstances the inference mentioned is yet not an unreasonable one from the facts that appear. Our conclusion, therefore, is that the order of nonsuit should not have been made.

The conclusion so reached required a consideration of the rulings of the trial judge, refusing the contestants leave to file their amended petition, and refusing to permit the introduction of certain evidence by them. As to the amended petition, it stated essentially the same matters as the original. The only difference in substance was as to the number of marriages Carson had gone through with prior to the one with the testatrix; the amended petition alleging several instead of one. The reason for refusing leave to file it do not appear, and the claim of respondent is that the matter was one within the discretion of the court. This is true, but the discretion exercised must be a reasonable one. has been said time and time again in Trial-refusal of this state that in amended the interest of jus- ableness. tice, and in order

leave to file

It

petition-reason

trary appears. No such circumstance as inexcusable delay on the part of the contestants or their taking the adverse party by surprise appears here, and in the absence of some such circumstance we can see no reason whatever why the contestants should not have been permitted to correct or amplify by amendment their allegations as to the previous marriages of Carson.

As to the rulings upon evidence, at the very outset of the trial the contestants sought to introduce testimony of statements made by the testatrix in conversations with others than Carson, evidencing her belief that her marriage to Carson was legal. The evidence was ex

The rule is without exception, so far as occurs to us at the moment, that whenever the intention, feeling, belief, or other mental state of a person at a particular time, including his bodily feeling, is material to an issue under trial, evidence of

-declarations

state.

Re

such person's declashowing mental rations at the time, indicative of his then mental state, are admissible in evidence. It is wholly immaterial whether such declarations were made in the presence of an adverse party to the litigation or not, or what the character of the litigation is. The sole tests are, Is the intention, belief, or other mental state of the declarant at the time material to the issues under trial? and, Does the declaration indicate what the declarant's intention, belief, or other mental state at the time was? Arnold, 147 Cal. 583, 82 Pac. 252; Adkins v. Brett, Cal., 193 Pac. 251. Of course, if, as is frequently the case, and was the case here, the declarations include or are in the form of statements as to past events, the declarations are not competent as proof of such events, and, if that is their only bearing, they are not admissible. This was in fact the only bearing of the declarations excluded in such cases as Re Calkins, 112 Cal. 296, 44 Pac. 577, and Re Gregory, 133 Cal. 131, 65 Pac. 315, referred to by counsel, and those decisions go upon that ground. In the subsequent case of Re Arnold, supra, certain declarations which

did not bear on the testatrix's mental state were excluded for this reason, and others admitted which did. It is plain here that the belief of the testatrix at all times prior to her death that Carson was free to marry her, and that their marriage was valid, was material to the issues of the case. This being so, evidence of her declarations at any time indicating her then belief to that effect was competent, and should have been admitted.

The trial court did at first admit evidence of statements by the testatrix in Carson's presence that Carson had been married before and had been divorced, saying that the evidence was evidence was admissible only as against Carson. Later this evidence was stricken out, and other evidence of similar import refused admission, on the theory apparently that it was not competent as against the beneficiaries under the will other than Carson, and, not being competent as against them, was not admissible at all. There are two answers to this. In the first place, as we have said, the other beneficiaries were not in fact interested parties. The cause was one really between Carson alone and the contestants. In the second place, the declarations, while wholly incompetent to prove the matters related and in fact not introduced for that purpose, were indicative of what the testatrix believed the facts were, and were, as we have said, competent to show that belief, both as against Carson and as against anybody else. Nor was it necessary that the declarations be made in the presence of Carson or any other party to the litigation. They were not sought to be introduced as admissions, but as evidence of the testatrix's belief, and for that purpose were clearly competent.

The court also excluded all evidence of statements by Carson to the testatrix as to what his previous matrimonial experiences had been. Some of the evidence so excluded was even as to statements made at the very moment of their marriage. Upon what possible theory such evi