would get right to the bottom of things. In matters of business in buying or selling or loaning money she was very thorough. Mrs. Mauvais had a very good idea of the value of real estate and of moral security of the people and she went into those things very thoroughly, a hundred times better than I could myself on a business proposition. In regard to her will, I would say that Mrs. Mauvais always made up her own mind. I dealt with her for years. Mrs. Mauvais was a person who made up her mind from personal investigation. She was exceedingly firm and determined. She was never a woman of vacillating purpose of will on anything that I ever saw in all the many years of acquaintance, both socially and in business."

Judge Tuttle testified that he was the legal adviser of Mrs. Mauvais for several years following 1908, and that "from her first appearance in my office I was impressed with her understanding, thorough understanding of her business. She was a capable woman; she was above the average in mentality. She understood her affairs, she understood things when they were explained to her and insisted upon explanations frequently in matters that other clients would not be apt to insist upon, and matters would have to be explained to her fully frequently before she would adopt the advice which I was disposed to give her. In a general way she was a very competent woman. I do not think anybody could persuade Mrs. Mauvais to do what she did not think was right. She was a high-minded woman with correct notions of right and wrong, duty and the violation of duty."

Stated in brief form, Dr. Filipello testified that he had been acquainted with Mrs. Mauvais for twenty years, and had been her regular family physician since about 1902. That he saw her socially quite often; "I always found that she was in perfect, clear, sound intelligence, very bright. She was firm in her decisions; very affectionate to her children, and she attended to her business regularly. . . . She was not a woman readily influenced by the opinion or the advice of others, even her physician." She often spoke about her business affairs.

Dr. Beattie testified that he had called upon Mrs. Mauvais professionally at the beginning of her last illness and attended her for some months; that "she was a very strong

minded woman much to my surprise on many occasions. Absolutely self-reliant. She was quick and alert. I formed the opinion that she was a high-minded, high-principled woman and a woman of refined education.

Dr. J. U. Hall testified that he had attended Mrs. Mauvais professionally as a consultant, from time to time, for a period of eight years, beginning in January, 1908, and had opportunities to form, and did form, the opinion that she had, for a woman of her age, a keen, forceful, independent mind.

A number of letters written by the decedent to her children, for the most part subsequent to the execution of the will in probate, were offered in evidence. They show a degree of refinement and intelligence superior perhaps to that possessed by the average person. She continually addressed and spoke of all her children in terms of affectionate endearment and disclosed no degree of partiality nor suggestion of prejudice for or against any of them.

The relations existing between Mrs. Ferguson and her brothers and sister, during the years following the death of their father, Romeo Mauvais, Sr., were strained and fraught with misunderstandings and often with great bitterness of feeling. But it is not at all certain that these family disturbances and quarrels, and any false tales the daughter Juliette may have carried to her mother, had any perceptible or enduring influence upon the mind of the decedent. For instance, in a letter written by Mrs. Mauvais to her son Romeo in 1907 or 1908, having reference to previous difficulties between Juliette and Romeo, she wrote: "You know, Romeo, dear, I can't take any part in any of my children's misunderstandings." Much less may it be said that there is any substantial evidence in the record to which our attention has been directed which directly or indirectly establishes it as a fact that such family difficulties, or any statements made by the daughter Juliette to her mother, growing out of them, unduly influenced or unfairly affected the mind of the mother with reference to the composition and execution of the will in probate.

[3] Testimony was adduced on behalf of the contestant to the effect that the decedent had stated at times, both prior to and subsequent to the date of the will in issue, that

she intended treating all her children alike in the final disposition of her property. Such statements, however, are not of themselves sufficient to establish undue influence. (In re Calkins, 112 Cal. 296, [44 Pac. 577]; Estate of Kilborn, 162 Cal. 4, [120 Pac. 762]; Estate of Lavinburg, 161 Cal. 536, [119 Pac. 915].)

[4] The favored daughter had ample opportunity, so far as time and environment were concerned, to influence her mother's mind, but, as said in the Estate of Kilborn, 162 Cal. 4, [120 Pac. 762], "mere proof of opportunity to influence a testator's mind, even when coupled with an interest or motive so to do, will not sustain a finding of undue influence, in the absence of testimony showing that there was pressure operating directly on the testamentary act."

[5] It may be assumed, as claimed by the contestants, that the beneficiary of the will in question exerted a general influence over the affairs of the testatrix; yet without proof that such influence was brought to bear upon the testamentary act, a case of undue influence is not made out. (Estate of Morcel, 162 Cal. 188, [121 Pac. 733].)

[6] The contestants offered no evidence directly showing the exercise of undue influence by the daughter Juliette with respect to the testamentary act itself in question. While it is of course true that the exercise of undue influence may be shown by indirect evidence, such evidence must "do more than raise a suspicion. It must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator. (Estate of Kilborn, 162 Cal. 4, [120 Pac. 762]; McDevitt's Estate, 95 Cal. 17, [30 Pac. 101]; Estate of Calkins, 112 Cal. 296, [44 Pac. 577]; Estate of Morcel, 162 Cal. 188, [121 Pac. 733].)

"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." (In re Langford, 108 Cal. 608, [41 Pac. 701].)

It seems very highly improbable that a woman of Mrs. Mauvais' mental capacity, temperament, and business experience, knowing how to write her will (having in fact already written two), accustomed to advise freely with lawyers, self-reliant and of decisive mind, and situated

as she was, would have permitted any paper which she had been forced to execute against her desires to stand for years without revocation.

[7] It appears to us that the legal inferences, proper to be drawn from the circumstantial evidence relied upon by the contestants, amount in weight and value to no more than to create the suspicion or surmise that the will in probate was procured through the undue influence of the proponent. We believe that the proof relied upon is insufficient as a matter of law to upset the will in contest.

The order and judgment appealed from are reversed and the cause remanded for a new trial.

Richards, J., and Waste, P. J., concurred.

[Civ. No. 2928. First Appellate District, Division One.-October 28, 1919.]

FRANK G. EDDY, Respondent, v. HARRY STOWE et al., Appellants.

[1] APPEALS-ALTERNATIVE METHOD-EVIDENCE-DUTY TO PRINT IN BRIEFS. It is not a compliance with the procedure governing appeals under the alternative method for an appellant to print in his opening brief, or in the supplement thereto, only the testimony in the case favorable to his contentions. All the evidence material to the point made on the appeal should be presented in order that the court may consider its weight and sufficiency, and any conflict presented therein. The appellate court is not required to assume the vexatious burden of an examination of the typewritten transcript.

[2] ID.-EFFECT OF 1919 AMENDMENT.-The 1919 amendment to section 953c of the Code of Civil Procedure does not relieve the parties from the necessity of printing in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court, when the appeal is taken under the alternative method.

[3] NEGLIGENCE-COLLISION BETWEEN AUTOMOBILE AND HORSE-VERDICT EVIDENCE.-In this action for damages for personal injuries alleged to have been sustained by plaintiff as the result of a collision between a horse then being ridden by the plaintiff and an automobile operated by one of the defendants, the verdict was sup

ported by testimony appearing in the reporter's transcript which warranted the jury in arriving at the conclusion that the accident was caused by the negligence of the defendant automobile driver, and that no actions of the plaintiff in the premises constituted negligence contributing proximately thereto.

[4] ID.-LAW GOVERNING CASE-DUTY OF AUTOMOBILE DRIVER.-Such an action is not governed entirely by the provisions of the Motor Vehicle Act (Stats. 1915, p. 397). While both the plaintiff and the defendant had an equal right to the use of the road, if defendant was in the better position to avoid the collision, it was his duty to take all necessary steps to do so.

[5] ID. KNOWLEDGE OF FRIGHT OF HORSE-DUTY OF AUTOMOBILE DRIVER. Where defendant had knowledge that plaintiff's horse was frightened, it was his duty to keep a lookout ahead, and as he approached the horse and rider, to note the movements of the horse, and when he saw, or by the exercise of reasonable caution could have seen, that the horse was under excitement, bucking and manifesting unmistakable fright, ordinary care required him to slow up, stop his machine, or do whatever was reasonably required to relieve plaintiff of his perilous position.

[6] ID.-APPROACH OF FRIGHTENED HORSE-RIGHT OF DRIVER TO PROCEED-DISCRETION-CONSTRUCTION OF MOTOR VEHICLE ACT.-The provision of the Motor Vehicle Act requiring the person driving a motor vehicle on the highway, approaching a horse on which a person is riding, and the horse appearing frightened, to reduce the speed of the car, and, if requested by signal or otherwise, by the rider of such horse, to proceed no farther toward such animal "unless such movement be necessary to avoid accident or injury,” until such animal is under the control of its rider, does not vest the driver of the motor vehicle with discretion to determine whether such movement is necessary.

[7] ID.-STANDARD OF CARE QUESTION FOR JURY.-In such cases no fixed standard of care can be laid down as a matter of law, nor can it be said what conduct will amount to negligence; but, when the facts authorize the submission of the case to a jury, it should be left to them to determine from all the facts and circumstances whether or not the driver of the automobile exercised or failed to exercise ordinary care to avoid the accident, and whether or not the injured party observed due care. The legal measure of duty is the same upon both of the parties. Each must act with reasonable care to avoid an accident or collision.

[8] ID. COMPLIANCE WITH MOTOR VEHICLE ACT NOT SUFFICENT.—In this action for damages for personal injuries alleged to have been

5. Duty of driver of automobile when horses are encountered on highway, notes, 1 L. R. A. (N. S.) 223; 14 L. R. A. (N. S.) 251; 48 L. R. A. (N. S.) 946.