Report of the Proceedings and Arguments in the Probate Court of the City and County of San Francisco, State of California - Softcover

Inhaltsangabe

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1872 Excerpt: ... well as uncontested, because there could be no facts found by tie jury unless opposition was made. The presumptions would be the same, whether tried with or without a jury; and the burden of proof must be the same in the one case or the other. If tried by the Court, the Court must be satisfied from the proof taken that certain facts exist, and among them the fact of a sound and disposing mind. If this general rule which we have been considering is applicable upon the proof of wills, then these words "proofs taken" subserves no purpose in the Act, the presumption would be all sufficient without that which the statute so plainly requires, to wit, the "proof taken" upon the subject. A fair construction of these provisions of our statutes, I think, warrants the conclusion that the " sound mind" required in the statute of wills must be shown to have existed in the party whose scrip is proposed for probate, and that this is an affirmative fact which must be proved by the party propounding the will. That these statutes create an exception to the general rule that sanity is presumed, and that the burden of the proof of sanity is upon the proponents of the will. That they should have put in all the direct testimony they intended to rely npon in making out their case. It is conceded, that in case the burden of proof is on the proponents, they have no right to introduce now any further testimony, except such as is strictly in rebuttal of the case made by the contestant. The law as to the order of proof is admitted to be as is claimed by the contestant, and the discretion of the Court is not appealed to, both parties claim to stand on their legal right.. Evidence tending to prove partial insanity, as distinguished from general insanity, does not change the rule. The ob...

Die Inhaltsangabe kann sich auf eine andere Ausgabe dieses Titels beziehen.