
    [Sac. No. 854.
    Department One.
    January 31, 1901.]
    In the Matter of the Estate of T. N. BENTON, Deceased. ELIZABETH BENTON, Contestant of Will, Respondent, v. H. A. BENTON et al., Proponents of Will, Appellants.
    Estates of Deceased Persons—Contest of Will—Right of Heir-Beneficial Interest.—An heir at law of a deceased person may contest a will offered for probate without any other showing of beneficial interest than such heirship, although the will may provide for the contestant a larger share of the estate than would be received as ah heir at law.
    Id.—Trial of Contest—Submission of Issues—Questions for Jury— Ultimate Facts.—Upon the trial by jury of a contest of the probate of a will, the proper procedure and the best practice in submitting the issues to the jury is to submit with proper instructions questions as to the ultimate facts involved in the issues, such as whether the deceased was competent to make a will and whether at the time of its execution he was free from fraud practiced upon him by the person charged therewith.
    Id.—Effect of Verdict—Probate of Will.—If the verdict of the jury condemns the will upon either of the ultimate facts charged as grounds of contest, its probate must be rejected. If it supports the will, the court should take evidence upon matters not involved in the contest, and upon the joint findings of the jury and of the court in favor of the will, it must be admitted to probate.
    Id.—Submission of Questions as to Probative Facts. — The submis-' sion of questions to the jury as to probative facts, in addition to the ultimate facts, is allowable, but is not necessary.
    Id.—Findings Upon Probative Facts Only—Legal Conclusion as to Ultimate Fact.—Where the ultimate fact upon any issue involved in the contest is not submitted to the jury, and only probative facts are submitted and found, the ultimate fact cannot be considered as established, unless it necessarily results as a legal conclusion from the probative facts found.
    Id.—Inference of Fact not Permissible—Rejection of Probate.— The court must not make any inference of fact from the probative facts found by the jury, in order to support the judgment which it renders; and in order to justify the rejection of the probate of the will upon probative facts found, it must be " able to declare as matter of law from those facts that the judgment must be one rejecting the probate.
    Id.—Insufficient Findings as to Fraud — Fraudulent Intent not Shown.—Findings merely of probative facts bearing upon the ques. ti on of actual fraud, charged upon a proponent of the will, .do not legally show a case of actual fraud as defined by section 1527 of the Civil Code, where there is no finding that there was any intent of the proponent to deceive the testator, or to induce him to make the will, or that false representations made by him which controlled the action of the testator were known by him to be false, or were not believed by him to be true. Such findings cannot justify a denial of the probate of the will on the ground of fraud.
    Id.—Control of Testator—False Representations Honestly Made.— It is not fraudulent to seek to control a testator in making a will, with proper purpose and effect; and if false representations are honestly made, with a belief that they are true, and with good motives, they are not fraudulent, nor would the will in this respect be executed by reason of any fraudulent representation.
    Id.—Alternative Finding.—A finding that representations were false or fraudulent is not a finding of fact upon either alternative, and amounts to nothing.
    Id.—Representations'.not Shown to”’be Effective.—Findings as to representations not shown to have been made prior to the execution of the will, or as to representations which could have had no effect upon the mind of the testator, or which are not shown to have been believed or acted upon by him, are not indicative of fraud.
    Id.—Fraud in Execution of Will—Immaterial Finding—Material Omission to Find.—A finding that no fraud or misrepresentation was practiced by any person at the very time the testator signed the will and codicil is immaterial on the issue of fraud, and is not equivalent to a declaration that the proponent was not guilty of fraud practiced upon the testator in the execution of the will; and where there is no direct finding upon that subject matter, the omission is material, and a judgment rejecting the probate of the will must be reversed.
    Id.—Evidence—Divorce Suit—Testimony of Testator—Reporter’s Copy.—A reporter’s copy of the testimony given by the testator in an action for divorce is not admissible upon the contest of the probate of his will. Its admissibility is not justified by section 275 of the Code of Civil Procedure.
    Id.—Declarations of Testator—Testimony of Reporter—Refreshment of Memory.—If the declarations of the testator made in the divorce suit were for any reason competent and admissible, they must be proved as declarations, by oral testimony of the reporter who heard them, who could refresh his memory from his notes taken at the time.
    Id.—Kindness of Contestant to Proponent’s Family.—Evidence as to the kindness of the contestant shown to the family of the proponent is irrelevant and inadmissible.
    
      Id.—Immaterial Documentary Evidence.—A [deed of trust executed by the testator, and a lease made by him to the proponent are immaterial, and not admissible evidence for the contestant.
    APPEAL from a judgment of the Superior Court of San Joaquin County. Edward I. J ones, Judge.
    The facts are stated in the opinion of the court.
    J. G. Swinnerton, and J. J. Fitzgerald, for Appellants.
    Nicol, Orr & Nutter, and Budd & Thompson, for Respondent.
   GAROUTTE, J.

The wife is contesting the probate of the will of her deceased husband, Tolman B. Benton. The proponent of the will is Herbert A. Benton, a son by a previous wife. At the trial before a jury, the issues were limited to incompetency, and also fraud practiced upon the deceased by the proponent of the will in the making thereof. Fifty questions purporting to bear upon the issues raised were submitted to the jury, and answers returned thereto. Upon the strength of these answers the will was denied probate, and this appeal is taken from that judgment upon a bill of exceptions.

It is first asserted that the petition of contestant is substantially insufficient in not showing that she is beneficially interested in defeating the probate of the will. It is only necessary to say that she shows herself to be an heir at law of decedent, and that fact gives her the right of contest. As bearing upon this right, it is immaterial that the will attacked possibly gives her a larger share of the estate than she would take as an heir at law.

There appears to be some doubt in the minds of counsel in this ease, and also in the mind of the trial court, as to the character of the issues which may or should be presented to the jury in a case of this kind. Yet in view of the provisions of sections 1312 and 1314 of the Code of Civil Procedure, we see no reason for doubt as to the proper procedure to be followed; as, for example, in this ease, counsel and court may have submitted to the jury the question: 1. Was the decedent competent to make a last will and testament? 2. Was' the" mind of the decedent, at the time of the execution of the will, free from fraud practiced upon him by Herbert A. Benton? These were the ultimate facts in the case. A negative finding by the jury upon either of them would have required a denial of the will to prohate.- While counsel could, in addition to the ultimate facts, submit issues bearing specifically upon certain branches of the evidence, yet that course is not at all necessary; and. in many instances -the submission of the ultimate fact to the jury for a finding, when accompanied by clear and explicit instructions as to the law which should govern the jurors in applying -the evidence and arriving at a verdict, is the better practice to pursue. If the verdict of the jury condemns the will, a judgment rejecting its probate necessarily follows. If the verdict supports the will, then the court should take evidence upon the matters not involved in the contest, and thereupon, by virtue of the facts declared by the verdict conjointly with those found by the court, adjudge that the document be admitted to probate.

We here have the question presented, Do the issues determined by the jury justify the judgment made by the court, rejecting the probate of the will? The issue as to the competency of the decedent was found in favor of proponent; and the issue of fraud is the single one remaining. The findings of the jury upon the issues submitted to them stand the same as the findings of fact made by the court in a civil action, that is, when we are brought to the consideration of their sufficiency to support the judgment rendered. In the one case the jury makes the findings, and in the other the court makes them; and as said in Bull v. Bray, 89 Cal. 286, quoting from the syllabus: “Where probative facts only are found, yet if the ultimate fact flows as a necessary conclusion therefrom, the findings are sufficient; but in order to warrant the appellate court in inferring an ultimate fact from probative facts, it must inevitably follow from the facts found.” So in a case where the probate of a will is contested, if the issues presented to the jury involve simply probative facts, then, to justify the court in rejecting the probate of the will, the ultimate fact of fraud, undue influence, or mental incompetency must appear conclusively from the probative facts found. In other words, the trial court may not indulge in inferences of fact in order to support the judgment it makes. It must weigh and test the facts alone that are presented to it by the jury. Presumptions of law may. be indulged in, but the indulgence in inferences of fact as to matters bearing upon the issues presented to the jury are denied to it. The trial court must be able to say, “As matter of law from the facts found by the jury the judgment in this case must be one rejecting the probate of this will.” If an ultimate fact of fraud, or mental incompetency, or undue influence, be found by the jury, then the court is bound to declare that a certain particular judgment follows as matter of law. So must the court be able to declare from the probative facts found. It is said in the case of In re Sanderson, 74 Cal. 208: “In cases of contest of a will the issues must be such as that the determination of them will leave to the court no office except to enter a judgment admitting the will to probate or rejecting it.” The court is here speaking alone of the issues involving the ultimate facts alleged and denied by the pleadings.

We pass to a consideration of the issues found upon by the jury, and discussed by counsel in their briefs.

“Q. Was Tolman hi. Benton, at the time of and in the making of the two papers in contest, actuated and controlled solely by representations to him at any time made by Herbert A. Benton, and were such representations false or fraudulent? A. Yes.”

Then follow many questions and answers, of which the following are a fair illustration:

“1. Did Herbert A. Benton at any time represent to Tolman H. Benton that the contestant, Elizabeth Benton, was stealing from him, said Tolman H. Benton ? A. Yes.
“2. Did Herbert A. Benton at any time represent to Tolman H. Benton that contestant, Elizabeth H. Benton, was making use of tbe property of Tolman H. Benton for the benefit of others? A. Yes.”

We then have questions and answers of which the following are fair illustrations:

“1. Did Herbert A. Benton, by any false or fraudulent statement, ever cause Tolman Y. Benton to accuse contestant of theft? A. Yes.
“2. Did Herbert A. Benton, by any fraudulent or false statements, induce or persuade Tolman Y. Benton to apply to contestant any vile names or opprobrious epithets ? A. Yes.” We then have the following questions and answers:
“1. Did Tolman Y- Benton at all times know that contestant had been at all times to him, said Tolman Y. Benton, a dutiful .wife? A. Yes.
“2. Did Tolman Y. Benton at all times know that contestant had never at any time given him, said Thomas Y. Benton, any cause to act toward her or treat her in any manner other than in kindness? A. Yes.”

We also have these questions and answers:

“1. Did Herbert A. Benton ever make any statements or representations to Tolman Y. Benton about contestant, which he, said Herbert A. Benton knew to be false. A. Yes.
“2. Did Tolman Y. Benton ever make any will solely by reason of any false representations made to him, Tolman Y. Benton, by Herbert A. Benton? A. Yes.
“3. Was any fraud or misrepresentation practiced by any person on Tolman Y. Benton at the very time he signed the paper purporting to be a will and dated October 9, 1896? A. Yo.” fendants, which said judgment was rendered in favor of said plaintiff and against said defendants Bunnell and Germania Building and Loan Association for seven hundred and fifty-seven dollars and eighty cents, and one hundred and fifty dollars attorneys’ fees, together with expenses and costs in said action, and interest upon said amount of said judgment from the date thereof to the date of sale at seven per cent per annum; and by virtue of an order of sale issued out of said court upon said judgment on the twentieth day of December, 1898, and to satisfy said judgment I will, on Monday, the sixteenth day of January, 1899, at the hour of 10 o’clock A. M., at the front door of the courthouse, at the comer of Seventh and I streets, in the city of Sacramento, California, sell at public auction to the highest and best bidder for cash, in gold coin of the United States, the following described real property, to wit: [describing the property].”

That which will vitiate a contract will vitiate a will (In re Kohler, 79 Cal. 313); and section 1572 of the Civil Code provides: “Actual fraud within the meaning of this chapter consists in any of the following acts, committed by a party to a contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the 'contract: 1. The suggestion as a fact of that which is not true, by one who does not believe it to be true.” Tried in the crucible furnished by this section, do the facts found by the jury establish that the proponent of this will was guilty of fraud practiced upon decedent in the making thereof ? TJpon a careful consideration of those facts we have become entirely convinced that they do not constitute a fraud which vitiates the will of decedent.

The most important finding of the jury is the on'e first quoted. Yet it falls far short of showing a case of actual fraud, within the meaning of the aforesaid section of the Civil Code. It is, in substance, a finding that the deceased executed the will and codicil, actuated and controlled solely by representations made to him by Herbert A. Benton, and that these representations were false or fraudulent. In this statement of facts the all-important element is lacking, to wit: That Herbert A. Benton made these representations with intent to deceive the decedent, or with intent to induce decedent to execute his will. An intent to do one of these things is always an element and a necessary element in any given state of facts, in order that those facts may constitute actual fraud. This particular intent is the leaven which permeates the whole, and gives it the name of fraud. Again, there is no finding that these representations were known by Herbert A. Benton to be false, or that he did not believe them to be true. These also are elements necessary to a showing of actual fraud. Again, the finding is that the representations were false or fraudulent. As a finding of fact, that is neither one thing nor the other. Perchance these representations were all fraudulent only. The word “fraudulent,” as here used, has no well-defined legal meaning, and this part of the finding as to the representations being false or fraudulent amounts to nothing. This answer by the jury is consistent with a finding by it that, although the testator in making the will was actuated and controlled by the representations of Herbert A. Benton, and that these representations were false, yet that Herbert A. Benton believed them to be true and made them with the best of motives. It would not be fraudulent for him to seek to control the testator in making his will so long as his purpose and the effect thereof was proper, and if he believed that the representations he made were true, his conduct would not be fraudulent, nor would the will, in this respect, be executed by reason of any fraudulent representation.

We next have findings as to the representations made by Herbert A. Benton to decedent. These representations do not appear to have any connection with or relation to the representations referred to in the previous finding; and even if by inference or conjecture it might be held that they were the same representations, still there is no finding that they were false, or that they were made with intent to deceive the deceased or induce him to execute his will. Heather is there any finding that these representations were made prior to the execution of the will.

As to the finding that Herbert A. Benton by false or fraudulent statements caused Tolman H. Benton to accuse contestant of theft, and others of like character, we see no importance whatever in them as casting light upon the question of fraud. Standing alone, they wholly fail to indicate the practice of an actual fraud, and when joined to the other findings they fail to add any strength to them. The next findings to the effect that Tolman H. Benton at all times knew that contestant was a dutiful wife, and lived up strictly to her marital relations, etc., only serve the purpose of showing that Herbert A. Benton’s representations to deceased, tending to the contrary, had no effect upon decedent’s mind.

As to the finding that Herbert A. Benton made statements to his father about contestant, which he (Herbert), knew to be false, there is no finding that he made these statements with intent to deceive his father, or to induce him to make his will; neither is there a finding that the father believed these statements or acted upon them. It does not even appear that they were made prior to the execution of the will. While the next finding declares that Tolman H. Benton made a will by reason of false representations made to him by Herbert A. Benton, there is no finding that these representations were known by Herbert to be false when made. Again, it is left as a pure matter of conjecture that the words "a will” refers to the will and codicil here under consideration. We do not attach any special importance to the findings declaring that no fraud or misrepresentation was practiced by any person on Tolman H. Benton "at the very time ” he signed the will and codicil. Any particular moment of time is a matter wholly immaterial to the issue of fraud.

We are led to the conclusion that the findings of fact returned by the jury do not establish a case of fraud in the execution of the will and codicil here involved. While the petition of contestant charges fraud, for various reasons not apparent to the court, the question was not directly presented to the jury, in the issues upon which they were required to return a verdict. But, upon the other hand, we find no declaration of the jury that the proponent was not guilty of the practice of fraud upon the decedent in the execution of the will. While we have findings indicating that at the “very time” Tolman IT. Benton signed the will and codicil the proponent practiced no fraud upon him, still this finding falls far short of a finding that the making of the will was not had under the influence of proponent’s fraud. The case then presents itself exactly as a case where there is no finding of fact upon a material issue> and the judgment must be reversed for that reason.

The official reporter identified a certain document as a certified copy of the testimony of Tolman IT. Benton, given by him in an action for divorce tried some years prior thereto. We know of no section of the code that justifies the admission of this character of evidence. Section 273 of the Code of Civil Procedure is relied upon to effect that purpose, but it does not go to that extent. The evidence here sought to be introduced stood simply as the declaration of Tolman N. Benton; and if his declarations were competent and admissible evidence, they could have been placed before the jury by oral testimony of the reporter who heard them; and his recollection as, to the testimony may have been refreshed from his notes taken at the time. (Code Civ. Proc., sec. 2047; People v. Gardner, 98 Cal. 127, 132.) The said section 273 refers to reports of the official reporter required to be filed in the court. This question is discussed in Reid v. Reid, 73 Cal. 208, and it was there declared; “The unfiled transcript is certainly not a public record, but must be put upon the footing of a private memorandum. .... We think, therefore that section 273 does not make the transcript, itself admissible in. evidence;”

The court is convinced that all of the testimony tending to the point that contestant was kind to proponent’s family, waited upon them, etc., is foreign to any question involved in the issues upon trial. The court is also satisfied that the deed of trust given hy Tolman R. Benton was likewise immaterial as evidence. The lease given by the father to proponent also stands upon the same footing. The court is well satisfied that the questions here discussed may be considered upon a bill of exceptions taken upon appeal from the judgment. The court is also convinced that the demurrer to the petition of contestant was properly overruled.

For the foregoing reasons the judgment is reversed and the cause remanded.

Harrison, J., and Van Dyke, J., concurred.  