may not be amiss to remark that it plainly | He hopes when the survey is made it will appears that there was some fear in the minds of the nephews that the appellant might by will leave some portion of his estate to his wife's sister, Miss Upton. In any event, it appeared in evidence that the appellant had made no will, and, of course, if the order should stand, he could never hereafter make a will unless restored to competency by a decree of court. The main acts which it is claimed show mental incompetency are certain deeds, alleged to be signed by appellant, to different pieces of property which he did not and never did own. There is some evidence tending to show that appellant believed that he owned more land in San Mateo county than he really did own, and this belief was founded upon the fact that the title to his ranch, the Punta del Ano Nuevo, which was a Mexican grant, was bounded on the north by the Gonzales ranch, and appellant claimed-whether founded upon sufficient reasons or not-that the northern boundary of the grant extended some three or more miles further north than the line up to which he had occupied. The claim of appellant is stated by Dr. Robertson, the experienced alienist, who examined him as to the matter, as follows: "I examined him and others in regard to that, and he went into the details with me, explained the long Spanish grant story, and the final answer he made to my last question was that the Pacific Ocean bound him on the west, and he could not go into the ocean; that his southern boundary was absolutely fixed, and he could not go beyond a certain point; that his eastern boundary was the mountain-he could not be certain of that because it had not been surveyed, but on the north he was bounded by the Gonzales ranch. Wherever that line ran his property stopped. He insisted he owned around the town of Pescadero, and he is a little bit garrulous. There is another evidence of old age, I forgot to mention, when I got him on the subject of his property, it was hard to divert his mind from it; but at the same time he said, when that survey was run, he would only claim what was his in this survey, and what the law said was his he would take; if the land happened to be two or three miles beyond his present property, that he was paying taxes on, he would accept that as the boundary, and certainly force his neighbors out of what belonged to him; but if it came back a half a mile or mile within the property he now claims, that he would at once vacate; that he did not want an acre of land belonging to anybody else, and whatever that survey showed to be the truth he would be absolutely willing to stand by it; that he wanted nothing but his own; but what was his own he absolutely wanted, irrespective of present possession. In other words, he realized that the property he now owns and now occupies and now pays taxes on belongs to him and include two or three miles that belong to his neighbors." And the appellant says that Carl Coburn told him that he owned more land north of his grant, and he thus states the matter in his testimony: "Q. Has Carl Coburn ever said anything to you about the northern line of your property? A. He spoke to me about the northern boundary. I told him my northern boundary joined on what is called the Gonzales-I think that that is the name of the grant-the southern boundary of Gonzales was my northern boundary of the Punta del Ano Nuevo. That shows on the record. The west of my grant is the ocean. Q. Yes, sir. Now, without regard to the other boundaries, what did he tell you with regard to the northern boundary, where he thought that was? A. He said he had been looking the thing over, and it was north of Spanish Town about a mile. I said I didn't know that. I wasn't aware it ran so far north. Well, he said my grant called for so many thousand acres. He wanted to know how many acres there was, and I said I understood there were 7,700 and some odd acres in the Spanish grant-not American grant, but Spanish grant. Well, to come to reckon that, the American is four times that amount, and it comes close on to 30,000 acres in the grant. The grant of course was a Spanish grant. I don't know anything about the United States grants. I never had anything to do with the United States grants. My deed of the property came from Mexico. Q. Well, now, without regard to the history. I am not going into the history of the Mexican grant, but just what Carl Coburn told you. I understand that Carl Coburn told you that the northern line was far to the north of Pescadero? A. He said it was beyond Spanish Town. 'Well,' I said, 'I wasn't aware of that.' 'Well,' he said, 'It comes to the Gonzales southern boundary.' 'Well, I don't know exactly where the Gonzales southern boundary was, because I had never had that surveyed, and the grant has never been surveyed, only little portions of it-that is, the grant Punta del Ano Nuevo.'" With these facts as a basis, let us examine and analyze the testimony as to incompetency. It appears that in the year 1907 the appellant had litigation with the Gazos Creek Mill Company, involving important rights as to a sale of growing timber and rights of way by the appellant to said company. The case had been decided against appellant in the superior court of San Mateo county, and Carl J. Coburn appeared to be very anxious to assist in appealing the case, and offered his services free to assist his uncle in any manner he could. At all events, Carl testified that he told the old man that he could not go ahead and assist in employing attorneys and attending to matters without some authority, and that he not only told his uncle this, but that he refused to do anything without a pow gust, 1907, a general power of attorney was | torneys. We knew-at least I knew-the executed to him and signed by Loren Coburn. case was in a very precarious condition; that The power of attorney was introduced in evi- there was danger of the case being decided dence, and hence we may assume that there- against us. Mr. Azro Coburn asked his uncle, after Carl was the attorney in fact of his he says, 'How is everything?' and asked him old uncle. Of course, as such it was his duty about his cases and how they were going to act with the utmost good faith with his along; asked him if he had not better try uncle who had imposed confidence in him. and do something to settle the case before It appears that about the 15th day of Janu- it was decided." ary, 1908, Carl wrote to the other nephew, Azro Coburn, who resided in Holyoke, Mass., and in response to the letter Azro came to California. This letter was not shown, nor was it produced in evidence, although some reference was made to its contents. There is nothing to show that any deed had been made by appellant, or any property disposed of up to this time. In fact, the only thing that is stated by Carl as a reason why he wrote to Azro is the situation regarding the lawsuit with the Gazos Creek Mill Company, which he was trying to compromise, and of which one of the attorneys he had employed advised the compromise or settlement, by having appellant pay the company $23,000. This appellant refused to do, claiming that he was right, and would win the case on appeal. The result shows that the judgment of appellant was correct, for he did win the case on appeal. Gazos Creek Mill Co. v. Coburn, 8 Cal. App. 150, 96 Pac. 359. It is a significant fact that proceedings had been instituted to have appellant declared incompetent some eight or nine years before, in which proceedings Carl Coburn was a witness, and claimed at that time that his uncle was mentally incompetent. Those proceedings resulted in favor of appellant, and it is in evidence, and not contradicted, that since that time he has accumulated some $300,000. We have looked in vain for any evidence of any act tending to show mental incompetency up to the time that the letter was sent to Azro by Carl. In response to the letter from Carl, Azro arrived in San Francisco on January 26, 1908, and it appears, by appointment, met his cousin Carl at the Hotel Jefferson in San Francisco. While there appellant called to see his nephew-whether by request or not does not appear. Azro describes the visit as follows: "We went upstairs into my room and visited there during the evening, and during the evening I had pleasant conversation with uncle, and talked some about his affairs, and I asked him about certain litigation he had got into, how he was coming out on it, and he told me he was coming out all right, and I told him I hoped he would. He made only a short call that evening." Carl describes this call of his uncle as follows: "He came to the Jefferson Hotel, where Mr. Azro Coburn and I were stopping, and he met us there. Azro Coburn took him up to his room, and they began to have a talk about the timber case. The timber case I believe was set for the 27th of this month. Mr. Azro Coburn We will now review briefly what these two nephews did, according to their own testimony, in order to procure evidence as to the mental incompetency of appellant. The first thing, according to their testimony, was to procure a deed from appellant to one Richards of the city hall in San Francisco, which deed made no reference to the city hall by name. Both Azro and Carl testified that they saw the old man sign this deed. It is dated January 28, 1908, evidently showing that diligence was being used after Azro arrived in San Francisco. It does not appear that any explanation was made to appellant as to why they wanted the deed signed. Azro testified: "I did not read the deed to Loren Coburn. Nobody read it to him. I don't know that anybody called his attention particularly to the property described therein. I don't know what Carl said. I saw him sign it. That is all I saw about it. I saw him read it. That is all. I assume he did because his lips moved. I don't know whether or not he was told that this was some other document, a lease of a portion of his property in Pescadero. did not hear any such remark." Carl testified that the deed was signed by appellant without any representations being made to him; that "he came to sign that document by me asking him to in my office at Pescadero." There were two deeds offered in evidence procured in substantially the same way, and some four or five leases. The leases were obtained by stating, or leaving appellant to infer, that they were of property claimed by him to be within the calls of his grant. These instruments were procured in nearly every case at the instance of Carl, without any explanation to the old man as to the description. We think it is sufficient to say that they were procured by one in whom appellant had confidence and who held his power of attorney. Azro testified that the papers, deeds, and leases were all procured for the purpose of being used in these proceedings. In his own language he said: "It was contemplated, if we could get sufficient evidence that he had done something that was detrimental to his own property, or liable to, then there might be grounds for this proceeding. It seems to me the power of attorney was almost sufficient; but at the same time I wanted to have sufficient evidence. I wanted to be sure, not that Mr. Coburn could escape these proceedings, but I wanted to be sure and prove to the court that he was incompetent; that he might be likely to be influenced by some designing person." And "All of these papers were prepared in con- | ceeding, and who deceived him by pretending templation of proceedings of this character, to be his friend; the claim to lands north of just as testified to by Mr. Azro Coburn, and Pescadero, which claim, even if not well also to please Mr. Coburn. Mr. Coburn was founded, was a harmless delusion. Then not satisfied unless somebody would agree to what is the evidence of the mental unsoundtake a lease, and acknowledge his authority ness of appellant? No physician or alienist over that grant, and I saw no harm in doing was called by petitioner, nor did he have so; that is, so far as this lease to Dr. Banks any medical examination made of appeland Mr. Perry were concerned-simply to sat-lant. Dr. Banks testified that in his opinisfy him." ion appellant was "not competent to manage Not only was Carl Coburn the attorney in his own business"; but he said nothing as fact of the old man, but he admits that he to his "mental sanity," and not only this, but was friendly with him, pretending to advise it appeared from his evidence that his acand assist, while in fact consulting with quaintance was what he called a "mere casAzro and his attorneys in the initiation of ual one." He further testified that his opinproceedings hostile to him, and preparing the ion was based to a great extent upon the deeds and procuring the signatures thereto signing of a lease by appellant to himself. for evidence. He not only advised appellant, Dr. Banks, upon consultation with Carl and but assisted him in getting witnesses for Azro Coburn, paid appellant $5 for one the trial, not even intimating that he was month's rent, and agreed to continue to pay using all his endeavors to have his uncle ad- $5 per month for a lot which appellant claimjudged incompetent, and to be appointed ed to be within his boundaries. In cross-ex guardian. If appellant was mentally incom- amination he said: "I cannot recall one inpetent, Carl should at least have been honest stance that I know of by observation in and fair with him, and not have resorted which Mr. Coburn has been gotten the best to deception for the purpose of procuring | of." evidence. These deeds and leases were prepared from January 30 to February 6, 1908, at least seven of them within a period of seven days. The petition to have a guardian appointed was filed on the 8th day of February, 1908, and the trial commenced on the 15th. Azro Coburn thus procured sufficient evidence within a week to satisfy himself that his uncle was incompetent, not based upon evidence of what occurred before he came to California, but based upon evidence of acts done within the week. Surely if appellant was mentally insane on the 1st day of February, 1908, ample evidence could have been procured among his neighbors in the community where he had spent nearly all his life. In our opinion the mere signing of these deeds and leases, if true, is not sufficient to show mental incompetency; and it may further be remarked that appellant denies that he ever signed them. We do not attach any great importance to the testimony of Carl Coburn to the effect that appellant wanted him to raise quite a sum of money to be used in part in bribing certain judges. Appellant denies that he ever made such a request or even intimated it. It does not appear that such bribes were ever offered or attempted, and the fact, if true, would not of itself be sufficient to show mental unsoundness. Carl, according to his own evidence, agreed to take part in the contemplated bribing, and it does not appear that he ever protested or even suggested that it would be wrong. We therefore may eliminate from the case the acts as to the Gazos Creek litigation, in which the appellant had the best judgment of them all; the signing of the deeds and leases without explanation to him by his attorney in fact, who had been a witness against him nine years ago in a similar pro E. B. Gayety, a witness for petitioner, when asked whether he regarded appellant as a man who is competent to manage his own affairs, replied: "Sometimes I do; sometimes I do not." In cross-examination he said, in speaking of appellant: "He gives his own personal attention to that, and makes his own leases with his tenants, and collects his own rents. * * * The conditions were very binding upon the tenants. I should judge they were what I used to term when I made leases an 'iron-clad lease.' Mr. Coburn in those leases has safeguarded interests in every every imaginable way. * In one sense of the word he is a very careful business man in his dealings there with his tenants and in other business transactions." his N. J. Perry testified that he had known appellant off and on for 12 years. He did not pretend to be an intimate acquaintance, or testify as to his mental sanity. In cross-examination he said: That he could not state that appellant is in such a condition physically that he is not able to take care of himself. That appellant "has a great deal of property over there, a great many tenants, makes a great many leases, has a great deal of rent to collect at different times. He drives around, sometimes the old man Upton with him, and at other times I think Miss Upton goes out with him. * * I have said before, in the way that Mr. Coburn has expressed himself to me, I believe that he is lacking in vitality, that is all." Manuel Goulart testified that he had known appellant since 1882, and in his opinion appellant was not competent to manage his property. In cross-examination he said, however: "All the business that I have done has been with Mr. Coburn. I have leased some land from him. I leased land last year from him, and had my dealings with him | portunity during those business operations direct. I found him able at that time to of forming an opinion as to whether he was transact the business with me. The mentally competent. My opinion with refbusiness was transacted satisfactorily to erence to his competency or otherwise, as both sides; that is, I leased some land, and the management of his own affairs is, that we agreed upon the rental, and Mr. Coburn he is absolutely competent. I think he is agreed upon the amount I should pay. I as well competent to manage his own affairs rented a ranch for cash rent, and another and look after his side of the bargain as piece of land I had on shares." any one I have come in contact with in the bank for the last 10 or 15 years; that is, that he can take care of his side of the bargain." Gehiel Coburn, a brother 10 years younger than appellant, testified that in his opinion appellant was not competent to manage his business. It appeared, however, in cross-examination, that the witness had sawed wood for appellant; but evidently the alleged incompetent was the one who could pay the unsuccessful witness for sawing wood. This witness admitted that he took part in trying to have a guardian appointed for appellant some nine years ago. He further testified: "I then testified that Mr. Coburn was incompetent. The result was that he was proven not incompetent. ** So far as Mr. Loren Coburn's ability to get about is concerned, he is about as active and spry now as he was eight or nine years ago. He appears to be around. I only see him occasionally you know, I notice no material difference so far as his being able to get about is concerned; only he goes a little lame more than he used to, bent over. As to his habits of living, Mr. Coburn, I don't know that he dissipates. I don't think that he uses intoxicating liquors. He does not use tobacco in any form. I think he leads a regular life so far as that is concerned. He has no bad habits of any kind that he needs the appointment of a guardian for." Dr. Robertson, a physician of standing and an alienist of experience, carefully examined appellant, and testified as to his health, both mental and physical, as follows: "Mr. Coburn, so far as I could judge, is an absolutely healthy man. * * * I could hardly believe that a man 82 years old could have the apparent physical vigor that this man does. For instance, upon handing him a paper to read, I found he didn't use glasses at all. I am barely turned 50, and yet I find glasses an absolute necessity. I find his hearing in good condition. I found his heart in normal position and condition. I found no evidence of any change of circulation in the brain such as we expect to find in a man over 50. As a matter of fact, in nothing that I examined, in no statement that he made to me, did I find anything other than a normal individual, either mentally or physically. * Mr. Coburn's whole life has been one of money, the acquisition of money, the handling of money and distribution of money, all in the world that he thinks of apparently-his one ambition in life is to acquire money, to hold property, and to fight for what he believes is right. He has a keen sense of justice apparently, at least justice so far as it relates to him and other people. He told me, for instance, if he was deprived of his rights, and had to go to any guardian, and wanted a four-bid meal, and he handed him two bits, and told him to get a dinner with that-the old man held out his hands in horror, expressing absolute disgust." This presents the substance of all the evidence offered by petitioner as to mental incompetency. There is nothing to show that appellant is incapable of taking care of him. self. There is but the mere opinion of a few witnesses as to appellant being incompetent to take care of his property, and these opinions are worthless because not based upon any facts or reasons. On the other hand, appellant presented the evidence of many of his neighbors as to his mental and physical competency. We have not space to give even a synopsis of that testimony, but that of James Moffitt, the cashier of the First National Bank of San Francisco, is a sample. Mr. Moffitt testified: "I know Lor-mony is as follows: "I pay my bills. I deal en Coburn of Pescadero; have known him seven or eight years. He is a patron of our bank. He has been such for approximately that time, a little more or less. I have known him in connection with the bank during that time, during which time I have frequently met him in business. * I don't know his age exactly. I suppose generally he must be well over the 70-year term, and he always struck me as a man of remarkable physical strength. I have had business relations with him concerning his affairs and his The appellant took the stand in his own behalf, and there is nothing in his long examination that even tends to show mental incompetency. No one could read the testimony without being impressed with his keen grasp of business details. Part of his testi altogether in cash. No long tails about it. to these matters were clearly inadmissible. The Code provides (Code Civ. Proc. § 1870, subd. 10) that evidence may be given upon the trial of the following facts: "The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer, and the opin the mental sanity of a person, the reason for the opinion being given." And in such case the reasons upon which the opinion is based must be given, and the opinion itself can have no weight other than that which the reason brings to its support. Estate of Dolbeer, 149 Cal. 227, 86 Pac. 695. The opinion as to the mental sanity of a person is one thing. His opinion as to whether or not he is competent to properly attend to his business, or whether he is like theaters and gambling places, and taking a drink and having a great time. I never do anything of that kind. When I get through my work at night, I go into my house. I have a fireplace, and build a fire, sit down, warm my feet, rest myself up, and about 8 or 9 o'clock I go to bed. Sometimes it overruns that, when I have something quite par-ion of an intimate acquaintance respecting ticular to attend to, and I don't get to bed until 10 or 8 or 9; but as a general rule I go to bed about half past 8 or 9, and get up in the morning from 6 to 7, and when I am up around I have something to attend to, and the folks that know me they know that I am out around attending to business." His description of meeting Azro Coburn at the Jefferson Hotel in San Francisco is as follows: "He wanted me to go up and see him. I went up there and saw him a few minutes, and he commenced to talk about my prop-ly to be imposed upon, is quite another and erty, and I thought that was queer about his talking about my property. I thought he had better take care of his own property at home, and I was competent to take care of my own property-to come about 3,000 miles to take care of my property. I said, 'What is the matter with you?' 'Well', he said, 'I will tell you, you are in litigation over some timber land here.' 'Well,' I said, 'what of it?' 'Well,' he said, 'don't you think you had better seek a compromise and settle up?" "Well,' I said, 'I haven't got nothing to compromise.' 'Well,' he said, 'I think you had better. They may beat you,' and all that. I said: 'I don't know how they are going to beat me. They have no cause of action.'" different thing. Shapter v. Pillar, 28 Colo. 209, 63 Pac. 302. It was there said: "Applying these rules, it is manifest that the opinions of the witnesses regarding the incapability of the plaintiff in error to manage and control his own business affairs should have been excluded. Those who had seen and conversed with him could properly give their opinion on the question of his insanity; but the vital one, i. e., the degree of his mental incapacity in that account, and the extent to which he may have been incapacitated thereby from managing his business, the jury should have determined from all the evidence on the subject. It was not a question which required peculiar skill or We are fully aware that an appellate court knowledge to comprehend. It was one which will not reverse a finding if there is a sub-men of ordinary, average intelligence, after stantial conflict in the evidence; but the evidence, in order to raise a conflict, must be such as to present a fair and reasonable ground for a difference of opinion. The finding or verdict must have meritorious support in the evidence. A few general statements without substantial reasons are not sufficient to raise a conflict. Smith v. Belshaw, 89 Cal. 427, 26 Pac. 834; Field v. Shorb, 99 Cal. 662, 34 Pac. 504. In the latter case it was sought to have a gift of personal property set aside at the suit of an administrator, on the ground that the decedent, at the time of making the transfer, was of unsound mind, and the jury found that the mind of the decedent was sound up to within three days of the making of the transfer, and from that time on was unsound. The court held that the finding of the jury as to unsoundness of mind at the date of the transfer was without sufficient support in the evidence, and therefore set the verdict aside. The court erred in allowing several witnesses to testify, under the objections and exceptions of appellant, as to their opinions as to "the ability of appellant to manage his property," and "as to whether or not in their opinions he was likely to be imposed upon by designing parties." The opinions of being acquainted with the hallucinations, if Pac. 603, it was held that the opinion of a make a will was not admissible; the court The orders are reversed. HALL, J. I concur in the judgment, but am unable to agree with what is said in the opinion of the presiding justice as to the insufficiency of the evidence to support the finding that appellant "is incapable of taking care of himself and managing his property." The evidence upon this point is not as satisfactory as it might be, and if the members of this court were sitting as trial judges it is quite possible or even probable that we would not have come to the same conclusion as to the ultimate facts as that arrived at by the trial court; but this is not the test applied in this court upon an appeal. If the findings attacked are sup |