
    [No. 13218.
    Department Two.
    April 21, 1916.]
    
      In the Matter of the Estate of Russel M. Bacon.
    
    Wills — Testamentary Capacity- — Execution—Evidence — Sufficiency. Findings supporting the testamentary capacity and due execution of a will are sustained by a preponderance of the evidence, although there was an appearance of the separation of the sheets and the insertion of another, where the circumstance was fully explained and each sheet was signed at the foot by the testator.
    Appeal from a judgment of the superior court for Lincoln county, Webster, J., entered March 25, 1915, sustaining the probate of a will, after a contest, tried on the merits to the court.
    Affirmed.
    
      Mulligan & Bardsley, H. J. Hibschman, and H. N. Martin, for appellant.
    
      Merritt, Lantry & Merritt and John I. Melville, for respondent.
    
      
       Reported in 156 Pac. 845.
    
   Parker, J.

The petitioner, Thomas Bacon, commenced this proceeding in the superior court for Lincoln county, contesting the validity of the will and the codicil thereto of his father, Russel M. Bacon, deceased, which had theretofore been duly probated in common form in that court. The grounds of contest relied upon by the petitioner are, in substance: (1) That, after the execution of the will, it was wrongfully changed by the removal of one of its sheets and the substitution of another therefor by someone other than the deceased, so that the will as probated was not the will of the deceased; (Í2) that the will was procured to be executed by deception and undue influence practiced upon the deceased; and (3) that the deceased was not of sound mind and was mentally incapable of making a will at the time of the purported execution of the will and codicil. At the conclusion of a somewhat protracted trial, the court sustained the will as probated and rendered judgment accordingly against the petitioner, from which he has appealed to this court.

There are no questions here presented calling for serious consideration other than questions of fact. The alleged wrongful change of the will after its execution is to be determined from circumstances which must be viewed in the light of oral testimony the credibility of which the trial court was much better able to judge than we are. Some facts appearing from the will itself, such as the manner in which its separate sheets were attached together, their appearance of having been separated and again attached together, and the difference in the typewriting on one sheet as compared with the others, are fully explained as having occurred before the execution of the will and during the course of its preparation, by the testimony of a credible witness which the trial court was warranted in believing, specially in view of the fact that the signature of the deceased appears at the foot ■of each separate sheet of the will. It is true that an expert handwriting witness, by his testimony, if it is to be believed, would render the signature of the deceased upon the alleged changed sheet doubtful; but other handwriting witnesses, who apparently are equally credible, if they are to be believed, render it practically certain that the signature was the signature of the deceased. This view, we think, is supported by a comparison of that signature with those upon the other sheets, including the one at the foot of the entire will, all of which are before us and were before the trial court. It is also true that another witness testified to facts tending to show that this particular questioned sheet of the will was inserted after its execution in place of the one originally there. We think, however, in the light of all the circumstances, the trial court was fully warranted as regarding the memory of this witness not sufficiently certain to establish the change in the will claimed to have been made.

The alleged deception and undue influence practiced upon the deceased inducing him to make the will, and also the alleged want of mental capacity on the part of the deceased at the time of the execution of the will, we think the learned trial court was warranted in concluding as being wholly unsupported by the evidence.

We have read with much care all of the evidence as found in the abstracts thereof made by counsel, which are quite full; and have also read a considerable portion of the evidence as found in the statement of facts, especially that touching the alleged ehange in the will after its execution; and are convinced therefrom that it preponderates in support of the views of the learned trial court upon all the questions presented. We think it would be unprofitable to review the evidence in detail in this opinion.

The judgment is affirmed.

Moréis, C. J., Holcomb, Main, and Bausman, JJ., concur.  