has ever been convicted of a felony. The details and circumstances comprising the offense should not be gone into. But, in view of the statute, section 2051 of the Code of Civil Procedure, which allows the proof of the fact to be made either by the evidence of the witness himself or by the record of conviction, it would appear that not only the fact of the conviction could be shown, but the name of the particular felony of which the witness had been convicted. Beyond this the examination

should not go.

11. Under objection of the defense, the defendant Chin Hane, upon cross-examination, in answer to interrogatories, testified that he had never had any trouble with Jesse Jim (the party who discovered him to the officers after the killing), nor Ah Wah (deceased's wife), nor the Lee family (to which the deceased belonged), nor the Chee Kong Tong. Under the facts forming the history of this case, we are inclined to think that this character of evidence would have been admissible, coming from the defense, as tending to show an absence of motive to do the killing. Objection was made to its introduction by the defense, upon the ground that it was not crossexamination; and, especially in view of the fact that the witness testifying was the defendant, we think it should have been excluded if the court's attention had been called to that fact. But, as we view this whole line of evidence, it was rather favorable to the defendant than otherwise, and no prejudicial error was committed.

12. In rebuttal the witness Cox, having known the defendant Chin Hane for many years in San Francisco, testified that he had never heard of him as a doctor. The motion to strike out this evidence was properly denied. While in its nature light, its weight was a question for the jury. The evidence of Clark in rebuttal, as to the identification by Ah Wah, was properly admitted. It is contended that the deposition of an absent witness, taken at the preliminary examination in a case of homicide, cannot be used at the trial, for the reason that such a proceeding is violative of section 13,

article I, of the constitution of the state.

That provision of the constitution has been construed contrary to the appellant's contention in the case of People v. Oiler, 66 Cal. 101.

For the foregoing reasons the judgments and orders appealed from are affirmed.

MCFARLAND, J., HARRISON, J., HENSHAW, J., and BEATTY, C. J., concurred.

Rehearing denied.

[No. 19565. Department Two.-September 3, 1895.] ESTATE OF CHARLES E. LANGFORD, DECEASED. MARY J. HERWICK ET AL., RESPONDENTS, MARIA M. LANGFORD, APPELLANT.

V.

CONTEST OF WILL-FRAUD-UNDUE INFLUENCE-FINDINGS AGAINST EVIDENCE.-Where, upon the contest of a will and codicil, the jury have found that the decedent was of sound and disposing mind and memory, but that the will and codicil was procured by the fraud and the undue influence of the widow, the findings as to fraud and undue influence are unsupported by the evidence if there is nothing in the evidence to support the alleged fraud, and the facts and circumstances directly attendant upon the execution of the will and forming part of the res gesta show that the testator was not then unduly influenced, but was acting with perfect freedom and following his own uncontrolled wishes, and understood perfectly what he was doing.

ID.-WORK ON FAMILY RESIDENCE-INSTRUCTIONS BY WIFE.-The wife has a right to have a voice in the matter of the family residence, and evidence that the wife, between the time of the execution of the will and codicil, gave some instructions in reference to work done on the family dwelling-house, and that the husband gave no instructions in reference to the work, has no significance upon the question of undue influence of the wife over the husband. ID. DEFERENCE OF HUSBAND TO WIFE-CONTROL BY HUSBAND OF GENERAL BUSINESS.-The testimony of two witnesses as to the deference of the husband to the wife in trivial domestic affairs cannot prove general undue influence by her over the husband where the evidence of many witnesses brought into close relation with the deceased and his family shows that he managed his business wisely, and made shrewd bargains, and transacted all his business himself, and that the relations between deceased and his wife were as pleasant and cordial as those usually existing between husband and wife, and

where there is no proof that the deceased was either afraid or under any unusual influence of the wife.

ID. DECLARATIONS OF TESTAMENTARY INTENT-CONTRADICTION OF WILL-Declarations of the decedent about his testamentary intent, consisting of the testimony of his children by a former marriage, much of it being remote from the time of the execution of the will, in regard to the division of his property among his children, at a time when he had already made a will which he never changed as to them, in which he had given them only a certain part of his property, and which he afterward solemnly republished when he made a codicil thereto, have no value to overcome direct proof that the will was freely executed.

ID. INTENTION OF TESTATOR AT TIME OF DECLARATIONS.-It is immaterial whether at the time of declarations made by the testator to his children he intended to deceive them, or intended to execute a new will, and such declarations have no weight unless introduced in connection with evidence tending to prove undue influence, mental incompetency, or fraud at the time of the testamentary act. ID.-SECOND MARRIAGE-DIVORCE FROM FORMER WIFE-INADMISSIBLE EVIDENCE OF DECLARATIONS.-Where the testator had been divorced from his former wife, the mother of the contestants of the will, and was married to his second wife many years before the execution of the will, testimony of the contestants as to declarations made by the decedent to them, and as to their conversations with him before, at the time of, and shortly after his second marriage, reflecting upon her character and influence over the husband, is too remote in time to be admissible for any purpose, and the admission of such evidence is prejudicial error. ID.-PROOF OF UNDUE INFluence-SUSPICION-SPONTANEOUS ACT OF TESTATOR.-In order to prove undue influence, it is not sufficient to raise a suspicion of it, but the evidence must amount to proof of undue influence; and such evidence has the force of proof only when circumstances are shown which are inconsistent with the claim that the will was the spontaneous act of the testator. ID.-HUSBAND AND WIFE-PRESUMPTION-VALIDITY OF WILL-INFLUENCE OF WIFE.-There is no presumption of undue influence in the relation of husband and wife against the validity of any provision which a husband may make in a wife's favor; and she may justly influence the making of her husband's will for her own benefit or that of others, so long as she does not act fraudulently, or extort benefits from her husband when he is not in a condition to exercise his faculties as a free agent.

ID. INTEREST AND OPPORTUNITY NOT SUFFICIENT-OVERPOWERING OF VOLITION. The presumption of undue influence is not raised by proof of interest and opportunity alone; but, in order to set aside a will for undue influence, there must be substantial proof of a pressure which overpowered the volition of the testator at the time the will was made. ID.-NATURALNESS OF WILL.-The consideration of the question whether or not a will is unnatural, or different from what might be expected, is of no importance, except in a case where there is evidence immediately tending to show mental incompetency, fraud, or undue influence inducing the testamentary act, in which event it may serve to help out a weak case; but a will cannot be upset because in the opinion of a jury or court it is unnatural.

CVIII. Cal.-39

1D. RIGHT OF DISPOSITION BY WILL-APPROVAL OF WILL BY JURORS. -The right of disposition of one's property by will, the policy of which has been sanctioned by the wisdom and experience of many generations, cannot be frittered away after the death of the testator according to the tastes and notions of others, in the absence of a change of the law by the legislature; and it is not necessary that the provisions of the will should meet with the approval of jurors.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. W. H. CLARK, Judge.

The facts are stated in the opinion of the court.

A. R. Metcalfe, and Anderson & Anderson, for Appellant.

.

Declarations not made at or so near the time of the making of the will as to be part of the res gestæ do not tend to prove that the will was procured through undue influence; and where the testator is of sound mind, they are entitled to no weight at all, in the absence of proof as to undue influence of the very testamentary act. (In re McDevitt, 95 Cal. 25; Waterman v. Whitney, 11 N. Y. 157; 62 Am. Dec. 71; 1 Redfield on Wills, 528; Herster v. Herster, 122 Pa. St. 239; 9 Am. St. Rep. 100.) Evidence as to family jars is no ground for impeaching the will. (McMahon v. Ryan, 20 Pa. St. 329, 331.) The influence of the wife, not inconsistent with her wifely position and duty, is not admissible to establish undue influence. (Storer's Will, 28 Minn. 9.) Undue influence must amount to coercion destroying free agency as to the very act. (Goodwin v. Goodwin, 59 Cal. 560; In re McDevitt, supra; Estate of Carpenter, 94 Cal. 407; 1 Redfield on Wills, 3d ed., 534; In re Hess' Will, 48 Minn. 504; 31 Am. St. Rep. 665; Herster v. Herster, 122 Pa. St. 239; 9 Am. St. Rep. 95; Eckert v. Flowry, 43 Pa. St. 52; Wainwright's Appeal, 89 Pa. St. 220; McMahon v. Ryan, supra.) There is no presumption against any provision that a husband may make for his wife. (Latham v. Udell, 38 Mich. 238; note to In re Hess' Will, supra; note to In re Richmond's Appeal, 21 Am. St. Rep. 98.) The

testimony seeking to besmirch the widow many years before the making of the will was not proper. (Estate of Flint, 100 Cal. 391; Pierce v. Pierce, 38 Mich. 419; In re Hess' Will, supra; Batchelder v. Batchelder, 139 Mass. 1; Mitchell v. Donohue, 100 Cal. 202; 38 Am. St. Rep. 279; Waterman v. Whitney, supra.)

R. A. Ling, H. H. Appel, and H. T. Gordon, for Re spondents.

The evidence is sufficient to warrant the finding of the jury, since the testamentary declarations of the testator are inconsistent with the provisions adopted by him, and the will is unjust and unreasonable. (Tyler v. Gardiner, 35 N. Y. 559; Harvey v. Sullens, 46 Mo. 147; 2 Am. Rep. 491; Neel v. Potter, 40 Pa. St. 483.) Fraud may be proved by circumstantial evidence. (Cooley on Torts, 475; Watkins v. Wallace, 19 Mich. 57; McDaniel v. Baca, 2 Cal. 326; 56 Am. Dec. 339; Waddington v. Loker, 44 Mo. 132; 100 Am. Dec. 260.) Undue influence may be exercised by mental as well as physical coercion. (Schouler on Wills, sec. 227; Haydock v. Haydock, 33 N. J. Eq. 494; Layman v. Conrey, 60 Md. 286.) Where authority is used to direct how to make a will, and to produce a will in which the person exercising the influence is principal legatee, it is undue influence, and the will cannot be supported. (Marshall v. Flinn, 4 Jones, 199.) Expressions of fixed purposes and intentions at variance with the provisions of the will have weight in determining the question of undue influence. (Dye v. Young, 55 Iowa, 433; Stephenson v. Stephenson, 62 Iowa, 163.) An inequitable distribution of property tends to show undue influence. (Schouler on Wills, sec. 238; Fountain v. Brown, 38 Ala. 72; Harold v. Harold, 1 Davis, 203; Waters v. Cullen, 2 Bradf. 354.) Where an unjust will is the offspring of the influence of a wife over her husband, it cannot be maintained. (Taylor v. Wilburn, 20 Mo. 306; 64 Am. Dec. 186.) Whenever undue influenced is exercised by any one over another, and he gains by its exercise, the will is worth