ID.-ID.-ID.-PROMISE OF LEGATEE UNDER PRIOR WILL NOT TO CONTEST LATER WILL-VALID CONSIDERATION.-A promise of a legatee under a prior will to waive the right of contest to a later will, excluding him, is a valid consideration for a promissory note compensating him for such waiver.

ID.-PROBATE LAW-CONTEST OF WILL BY CLAIMANT UNDER PRIOR WILL-FILING OF PRIOR WILL FOR PROBATE IMMATERIAL.-A claimant under an alleged prior will has the right to contest a subsequent will, whether the prior will is filed or offered for probate or not.

ID.-ID.-ID.-LEGAL RIGHT OF CONTEST-ULTIMATE SUCCESS OF CONTEST IMMATERIAL.-A legatee under a prior will may contest a later will of a testator excluding him, whether there is tenable ground upon which to base the exercise of that right, or not.

ID.-EVIDENCE-CONSIDERATION OF NOTE-BURDEN OF PROOF.-The presumption is, that a promissory note was given for a consideration, and this presumption has the effect of prima facie evidence, and the burden of proof is upon the defendant to overcome it.

ID.-ID.-ID.-ID.-PROOF OF NOTE AND NON-PAYMENT-PRIMA FACIE CASE.-When the plaintiff in an action on a promissory note proves the note and its non-payment, he makes out a prima facie case, upon which he is at liberty to rest until the defendant introduces proof showing or tending to show want of sufficient consideration.

ID.-EVIDENCE--DISPUTABLE PRESUMPTIONS-CONFLICT OF EVIDENCE. -Against a proved fact, or a fact admitted, a disputable presumption has no weight; but, where it is undertaken to prove the fact against the presumption, it still remains with the jury to say whether or not the fact has been proven, and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption.

ID.--ID. PLEADINGS AS EVIDENCE-INCONSISTENT ALLEGATIONS— CONSIDERATION BY COURT-RULE.--When a court or jury is called upon to consider certain allegations of fact in a pleading as evidence in the case, and which allegations are inconsistent with other allegations setting up a good cause of action or a meritorious defense, such facts are to be so considered by and subject to the same rules by which evidence of any other character is to be considered.

Appeal from the Superior Court of the City and County of San Francisco John Hunt, Judge.

For Appellants-Daniel A. Ryan.

For Respondent-Otto Irving Wise and Louis Hirsch.

This is an action on a promissory note for the sum of $2000, alleged in the complaint to have been executed by the defendant, Lotta Ruth Krone, in favor of and payable to the plaintiff.

The cause was tried by a jury and a verdict rendered in favor of the plaintiff for the face of the note, with legal interest from the date of its maturity, said note, dated June 3, 1903, having been made payable three years after its date, without interest.

Judgment was entered for the plaintiff in accordance with the terms of the verdict.

This appeal is prosecuted from said judgment and from the order denying the defendants a new trial.

The complaint is in the ordinary form of actions for recovery upon promissory notes.

The defendants, by answer, specifically deny the material averments of the complaint, and, moreover, filed a cross-complaint, in which, admitting the execution of the note, they attack the

validity of the instrument upon the ground that it is without consideration for its support.

The plaintiff introduced the note in evidence and thereupon rested his case. The note constituted prima facie proof of all that it purported to be. The presumption is that the note was supported by a sufficient consideration (sec. 1903, subd. 21, Code Civ. Proc., and sec. 1614, Civ. Code), and the burden of overcoming such presumption or of showing want of consideration sufficient to support the note was cast upon the defendants. (Sec. 1615, Civ. Code; Keating v. Morrissey, 6 Cal. App. Rep. 163, 91 Pac. 677.)

Considerable space is devoted in the briefs of counsel for both sides to the discussion of the question of the "shifting of the burden of proof." We fail to appreciate the pertinency of the discussion. It is only elementary to say that the burden of proof is always on the party maintaining the affirmative of the issue. In the case at bar it was incumbent upon the plaintiff to prove the due execution and non-payment of the note. But when he has made out a prima facie case, then he may rest and thus invite the defendant to exhibit whatever defense he may be able to interpose thereto. Our law, as seen, provides (sec. 1614, Civ. Code, supra) that a written instrument imports a consideration, and that the burden of showing that such an instrument is without a sufficient consideration to support it rests upon the party seeking to invalidate or avoid it. (Sec. 1615, Civ. Code, supra.) Therefore, when the plaintiff proved the note and its non-payment he made out a prima facic case upon which he was at liberty to rest until the defendants had introduced proof showing or tending to show that the note was unsupported by a sufficient consideration. While the burden was upon the defendants to dispel the presumption of a sufficient consideration, the burden in its strict sense was upon the plaintiff to prove his case by a preponderance of the evidence. "The two burdens," says the supreme court in Scott v. Wood, 81 Cal. 400, "are distinct things. One may shift back and forth with the ebb and flow of the testimony." As is said in Encyclopedia of Law and Practice, (Cyc.) volume 16, page 926: "Burden of proof', as a phrase, means either: 1-the necessity of establishing the existence of a certain fact, or set of facts by evidence which pre ponderates to the legally required extent, or 2--The necessity which rests on the party at any particular time during a trial, to create a prima facic case in his own favor, or to overthrow one when created against him." So, in the case at bar, as we have shown, the plaintiff having made the case required of him, it became the duty of the defendants to overthrow it, if they could, by proof sufficient to dispel the presumption which the law raises in favor of a consideration sufficient to support the instrument declared upon. Re ferring to subdivision 2 of section 2061 of the Code of Civil Procedure, providing that jurors may be instructed "that they are not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in their minds, against a less number, or against a presumption or other evidence satisfying their minds", the supreme court, in People v. Milner, 122 Cal. 179, says: "In this is a distinct recognition of the facts: (1) That

a presumption is evidence; and (2) that it is evidence which may outweigh the positive testimony of witnesses against it. It has been said that disputable presumptions are allowed to stand, not against the facts they represent, but in lieu of proof of the facts, and that, when the fact is proven contrary to the presumption, no conflict arises, but the presumption is simply overcome and dispelled. (Citing Savings etc. Soc. v. Burnett. 106 Cal. 514, 39 Pac. 522.) This is true. Against a proved fact, or a fact admitted, a disputable presumption has no weight; but, where it is undertaken to prove the fact against the presumption. it still remains with the jury to say whether or not the fact has been proven, and, if they are not satisfied with the proof offered in its support, they are at liberty to accept the evidence of the presumption." (Italics ours.)

The jury in the present case accepted the evidence of the presumption, supported by the testimony of the plaintiff, as against the other evidence offered to rebut it. But appellants claim that the jury were not warranted in so doing.

Let us briefly examine the evidence by the light of the rules as we have stated and as we understand them. The undisputed facts show that the plaintiff and the defendant, Lotta Ruth Krone, are brother and sister, and that after the death of their father, their mother married one J. C. Walker, who, subsequently to said marriage, adopted the defendant, Lotta Ruth Krone, as his own child. On March 30, 1903, Walker died. On January 6, 1903, the deceased executed a will, devising all his real property to his three stepchildren (there was another daughter of Mrs. Walker by her first husband) and a nephew in equal shares, and bequeathing his personal property to the three stepchildren, to the exclusion of said nephew. By the terms of this will the plaintiff was made the executor thereof, to serve as such without bonds. When this will was executed Walker was in his last illness, being confined to his bed in a hospital in the city of San Francisco. On the 19th day of January, 1903-13 days after the execution of the first mentioned will-Walker executed another will by which he gave all his property to the defendant. Lotta Ruth Krone, and named her as executrix of said will without bonds. On the day of Walker's death-March 30, 1903—this latter will was filed for probate and was admitted to probate on the 10th day of April, 1903.

To dispel the presumption that the note upon which this action is founded is supported by a sufficient consideration, the defendant. Lotta Ruth Krone, testified, in substance, that, immediately upon the death of Walker and upon learning of the execution by the deceased of the later will, the plaintiff began to ply the defendant, Lotta, with threats of trouble in the form of litigation unless she made a settlement with him; that he represented to her that the fact that she had been adopted by the deceased gave her no right to participate in the fruits of the estate left by Walker superior to his right to share therein as a stepson; that, as a stepson, he was entitled to one-third of said estate; that she received nothing for the note, but executed it "out of generosity" and to "prevent annoyances." She declared, in explanation of what she meant by her answer, that she made the note "to prevent annoyances, that she

executed the instrument to prevent "being pestered to death by his requests for some kind of a settlement." At first, she testified. he asked for only $1500, but subsequently demanded $2000, for which, finally, she gave him the note in dispute. The plaintiff thereupon, so said defendant further declared, agreed not to contest the later will. She declared that in none of the conversations with her brother in which he demanded a settiement did he make any reference to the will executed by the deceased on the 6th of January, 1903, and, therefore, made no claim that he was entitled to share in the estate of the deceased by reason of the provisions of said will.

The plaintiff, testifying in rebuttal, stated that he had, after the death of Walker, consulted attorneys Reuben Lloyd and E.

W. Hill with reference to a contest of the later will of the deceased; that his sister, Mrs. Krone, had telephoned to him on the day she executed and delivered the note to plaintiff-June 3, 1903– requesting him to call at the Alcalde apartment house in San Fran cisco, "saying that she would like to talk to me. I went there: Mr. Krone, the husband of my sister, was present in the apartment when the note was executed. My sister furnished the paper and ink. I never asked for $1500 and raised it. . . . When she sent for me and when I got to her apartments, she stated that she wanted to settle the difficulty between us, and I sat and listened to her. She said, 'Weli, Jack, you are entitled to your interest in this will that you claim' and she said, 'I want to continue the friendly feeling that a brother and sister should have, and I would like to settle this matter now' and I told her that was agreeabla to me; and so she told me of her condition then, that she was going to build flats in Fresno, and use the money that was in the bank. and borrow money from her father-in-law, and that she was perfectly willing to pay me if she had the money on hand. I told her that I was in no need of money then, and that I was perfectly will ing to wait. She felt that she was not able to pay more than two thousand, and she volunteered that amount; I had not made any proposition. I accepted her offer then and there. I received nothing from the estate of Mr. Walker directly or indirectly, other than this promissory note. She said that we were entitled

to what was coming to us, my other sister and myseif, but she thought it was hard that a distant nephew like Axon Walker should get any part of the money; she said that she wanted to keep the money among her own relatives."

Plaintiff further testified that, immediately upon hearing of the death of Walker, he went to the city hall in San Francisco for the purpose of filing for probate the will of January 6, 1903, but did not do so because the said defendant had already filed a will (referring to the later will of the deceased), and because, also, he desired to consult an attorney. He denied saying to his sister that as a stepson of deceased he was entitled to a share in the estate. He declared that he never threatened the defendant, Lotta, but said that "I told her husband that I was going to contest the will, and he told her." The note, he said, was given by Lotta upon the agreement that he "would not petition for the probate of the will",

referring to the first will executed by deceased, and that, upon receiving the note, he ceased to take further steps in the matter. The plaintiff further testified: "She gave me a note for $2000 and for reasons of my own, I wished to take the note and compromise the whole matter in that way. The reasons were that I was willing to compromise because Mr. Walker was moved one night by Mrs. Krone from St. Mary's Hospital, without anybody's knowledge. He was so ill at the hospital that the doctors said that if he was moved he would die in the ambulance. I was told by the nurse that although Mr. Walker was as a rule given but one powder, they gave him two the night he made out the will, which my sister had, and that he was in no condition to execute that will. Further, because the nurse told me that Mr. Krone, my sister's husband, had blackened himself and introduced himself to Mr. Walker as his brother, and on another occasion had brought in a doll made of rags and introduced the doll as the child of my sister, and I did not want to give information to distant relatives so that they could attack us upon other property which was not involved, and rather than give such testimony in law, I promised to take that money, rather than to have any trouble." He said that he had intended to file the will of January 6, 1903, up to the time that his sister compromised or settled their differences by executing the note in dispute, and then, having agreed as a consideration for said note to stop further proceedings on his part, he abandoned any intention he might have had to file said will.

We have thus given a substantial epitome of the important and vital facts to which both the defendant, Lotta, and the plaintiff testified upon the issue tendered and submitted by the pleadings. The testimony of these two parties constituted all the evidence received at the trial, except certain documentary evidence in the form of certain deeds and the two wills, etc.

It will readily be observed that there is a marked variance between the testimony given by the defendant, Lotta Ruth Krone, and that of the plaintiff upon the vital question whether the note in controversy was executed and given upon a valid or sufficient consideration, and we think the case as to that fact is, therefore, clearly within the rule as to conflicting evidence.

Counsel for the appellants suggests some dozen or more reasons for which, he claims, the judgment and order should be reversed. We have carefully gone over all the grounds for a reversal thus presented, but we consider it necessary to give particular attention to a few of them only.

The claim that the evidence discloses that the note was given without a valid consideration for its support is based not only upon the testimony given by the defendant, Lotta, but also upon the testimony of the plaintiff and alleged variances between his tes timony and certain allegations contained in the answer to the crosscomplaint filed by defendants, the purpose of which was to secure a decree that the note be surrendered for cancellation upon the ground that it was void for want of a valid consideration to support it.

The answer to the cross-complaint we would not commend as as