Three papers were offered for proof as to which, if either, was the last will of the deceased. The widow of deceased was the proponent, and certain of his children were contestants, The papers are dated respectively October 6,1879, November 9, 1880, and December 3, 1880. The case arising on the contest was tried by a jury, and answers were returned to the special issues submitted. We do not see the basis upon which some of the answers were founded, unless the jury were of opinion that they were arbitrators of some matters of difference between the widow and children, instead of determining as to the condition of the deceased. The jury should have had nothing to do with the .family feuds, except as bearing on the testamentary capacity of the deceased. Further than that, likes and dislikes are of no moment in this case.
The jury found that the deceased was of unsound mind at the date of the paper of October 6, 1879, and that he was induced to execute it by the undue influence of his wife. There is no evidence appearing in the transcript to support either of these findings; the evidence is the reverse, and is uncontradicted. The deceased had been addicted for years to the Use of intoxicating liquors; but, as we said in Estate of Johnson, 57 Cal. 529, “we cannot say, as a rule of law, that because a man is a drunkard, therefore he is of unsound mind.” The jury had not evidence before them of the effect his intemperate habits- had upon his testamentary capacity in October, 1879.
The jury found that the deceased tore his signature from the paper of October 6, 1879, with intent to revoke it as a will, and that he was of unsound mind at the time of the tearing. There is evidence to sustain these findings; though, if he were of unsound mind, the intent was nothing but an insane intent, and would not constitute an element of revocation.
The contestants claim that by declarations made by deceased during his last illness, he was of unsound mind and under the undue influence of his wife, in the execution of the paper of October 6,1879. Conceding (which we do not) that such declarations were competent evidence, it is sufficient to say that it was a part of the contestant’s case to establish his unsoundness of mind at the time of his last illness; such unsoundness was established, and was found by the jury; therefore such declara*21tions would not prove, or tend to prove, the truth of the matters declared by him.
The jury found that the deceased was induced to execute the paper of November 9, 1880, by the undue influence and threats of his wife. How far this was sustained by evidence is apparent from the testimony of the witnesses present. “ Mrs. Lang was in the room at the time. He dictated the will; she had a good deal to say about it; he reprimanded her for her dictation; the will was drawn as he dictated it.” Again: “She opposed the making of it and provisions of it. She objected particularly to the brother having an interest in it.....He would damn her and tell her to dry up. He threatened to put her out of the room, and persisted in making the will in spite of everything she said.” We see here no evidence that the will was procured to be executed by the undue influence or threats of his wife.
The jury found that at the time of the execution of the paper of December 3,1880, the deceased was of unsound mind. There is evidence to support this finding. The jury also found that the deceased was induced to execute this paper by the undue influence or threats (which, is not stated) of the wife; but, as he was then of unsound mind, threats or undue influence cut no figure for the purposes of this appeal.
The judgment and order are reversed, and the cause is remanded for a new trial as to issues i., ii., and vi. As to the other issues, the verdict will stand, subject to what is above said regarding the answer to issue iv.
Thornton, J., and Sharpstein, J., concurred.