Breen, 123 Cal. 657 [56 Pac. 633, 886]; Estate of Kruger, 143 Cal. 141, [76 Pac. 891],) nor are the Latimers, the unsuccessful claimants to heirships, parties interested in the estate. (Estate of Blythe, 108 Cal. 124, 125, [41 Pac. 33]; Estate of Walden, supra.) Upon the merits the curious contention is advanced that the estate of Matilda Walden, deceased, became liable for these costs and these attorney's fees incurred by the unsuccessful litigants because the evidence which they produced and the services which this attorney. rendered aided in defeating the claims of the American pretenders. If this be so, it forms no just basis of any legal claim under section 1720 of the Code of Civil Procedure, nor under any other provision of the law. And if these Latimers have any equitable standing it cannot in the nature of the case arise from any service which they rendered to the estate of Matilda Walden, deceased, but solely from the services which they may have rendered to the Monro claimants to that estate. If such services were in fact rendered, under convention or agreement of the parties, the claim, whatever may be its validity, is no more than a private demand against the Monro heirs. So plain must this be that it would be a waste of time to continue the discussion.

The order appealed from is affirmed.

[L. A. No. 4955. Department Two.-April 13, 1917.] In the Matter of the Estate of JOIN NEWTON STONE, Deceased. LEO STONE GREEN, Contestant and Appellant, v. FANNIE E. STONE, Proponent and Respondent.

WILL CONTEST OF PROBATE-UNDUE INFLUENCE SOLE GROUND OF CONTEST-APPEAL-DUE EXECUTION OF WILL.-On an appeal from an order admitting a will to probate, after a contest on the sole ground that it was the product of undue influence, the proceedings in probate touching the due execution of the will have no place in the record, and the order will not be reversed for the failure of the record to establish its due execution.

ID.-ORDER ADMITTING WILL TO PROBATE-SIGNING BY OTHER THAN TRIAL JUDGE.-Such order is not shown to be either erroneous or

irregular by the mere fact that it was signed by a judge other than the one who presided at the trial of the contest.

ID. ABANDONMENT OF GROUND OF CONTEST-SUBMISSION TO JURYEVIDENCE. Where the unsoundness of mind of the testator, as a ground of contest, was expressly abandoned by the contestant on the trial, it was not error for the court to refuse to submit such question to the jury, or to exclude evidence on the subject.

ID. DIRECTING VERDICT FOR PROPONENT ON SECOND TRIAL.-On a second trial of a contest to the probate of a will, based on the ground of undue influence, it was proper for the court to direct a verdict for the proponent if the evidence adduced for the contestant was not more favorable for him than the evidence offered at the previous trial, which the appellate court had held insufficient to establish undue influence.

APPEAL from an order of the Superior Court of Los Angeles County admitting a will to probate. Fred H. Taft, Judge.

The facts are stated in the opinion of the court.

Ingall W. Bull, for Appellant.

Kemp, Mitchell & Silberberg, and Hartley Shaw, for Respondent.

THE COURT.-This is the second appeal in the contest of Leo Stone Green over the admission to probate of the will of her deceased father. The decision of this court upon the first appeal will be found reported in 172 Cal. 215, [155 Pac. 992]. There the verdict of the jury finding that the will was the product of undue influence exercised over the husband by his wife was reversed as unsupported by the evidence. A second trial was had; a jury was impaneled, and after trial the court instructed the jury to return its verdict in favor of the proponent of the will. The jury did so, and from the judgment which followed this appeal has been taken.

The propositions advanced upon appeal will be considered seriatim. The first of these is that the evidence fails to show that the will was ever executed by the deceased in the manner required by law. (Code Civ. Proc., secs. 1308, 1315, 1318.) The sole question before the court and jury in the trial of the contest was as above indicated, whether or not the will (the due execution of which for the purposes of the contest was

thus admitted) was or was not the product of undue influence exerted upon the mind of the testator. The record upon this appeal, therefore, does not disclose, as it would not be expected to disclose, the proceedings in probate touching the due execution of the will. They may either have preceded or may have followed the determination of the contest. In either case they had no place in this record, and appellant's argument as directed to this point is frivolous. (Estate of McCarty, 58 Cal. 335; Estate of Dombrowski, 163 Cal. 290, [125 Pac. 233].) It is said in appellant's brief that the judgment and order admitting the will to probate was signed by a judge other than the judge who presided at the trial of the case. Conceding this bare statement of fact to be true and the brief contains nothing more than this bare statement of fact-it does not follow that this was error or even irregularity. It is quite conceivable, for example, that after the determination of the contest, the purely formal evidence in proof of the due execution of the will was heard by another judge sitting in probate, in which case it would have been strictly regular for that judge to have made the final order admitting the will. It is said that it was error for the court not to submit to the jury "the question of the soundness of mind and sanity of the deceased." But the contestant at the opening of the trial formally abandoned the ground of contest based upon insanity and declared that there was only one question at issue the question of undue influence. Still further it is said that the court erred "in excluding testimony regarding the mental condition of the deceased at the time the will was made." But for the reason just above indicated the ruling was strictly proper. It is finally said that the court erred in directing a verdict. But as the contestant is not at the slightest pains to show wherein the evidence differed in any respect more favorable to contestant's view from the evidence which had been admitted on the previous trial, which had been passed upon by this court and which had been held to be insufficient, we are bound to conclude that contestant's failure to point out by reference to the transcript of evidence any specific instance of such difference is a confession that the difference itself does not exist.

The decree appealed from is therefore affirmed.

[L. A. No. 4008. Department Two.-April 16, 1917.]

HARRIET A. FISHER, Respondent, v. L. D. OLIVER, Appellant.

APPEAL-NEW METHOD PREPARATION OF TRANSCRIPT-CODE PROVISIONS NOT JURISDICTIONAL.-The provisions of sections 953a, 953b, and 953c, of the Code of Civil Procedure, relating to the preparation of the transcript on appeal, which is a substitute for the bill of exceptions under the old method of appeal, are not jurisdictional, and delays in the preparation due to the reporter and clerk are not fatal to the appeal.

[D.-APPEAL FROM JUDGMENT WITHIN SIXTY DAYS-SUFFICIENCY OF EVIDENCE-APPLICABILITY OF CODE PROVISION TO BOTH METHODS.The provision of subdivision 1, section 939, of the Code of Civil Procedure, that exception to the decision upon the ground that it is not supported by the evidence may be considered upon an appeal from the judgment when taken within sixty days from the entry, applies to appeals taken under the old as well as under the new method.

DEED FROM BROTHER TO SISTER-INSUFFICIENT DELIVERY.-Where a grantor while at a hospital awaiting the performance of a serious operation upon him, handed to his brother a deed to his sister of certain real property with instructions to deliver and record it upon his death, but later withdrew the deed from the custody of his brother and retained possession of the property thereafter until his death, no valid delivery of the deed was effected. ID.-DEED IN POSSESSION OF GRANTOR-DELIVERY AFTER DEATH.-Saving under exceptional circumstances, ownership of real estate so far as that ownership is to be parted with by deed, necessitates a delivery of that deed to terminate the grantor's title, and where a deed remains in the possession of a grantor, to be delivered and to take effect after his death, the deed is void for want of delivery during his lifetime. ID.-EVIDENCE-SUBSEQUENT ACTS AND DECLARATIONS OF GRANTOR.While a grantor after parting with title will not be permitted to disparage the title which he has conveyed, and while a parting with title accompanies the delivery of his deed, yet when the very question in issue is whether the grantor has parted with title and whether in fact he has delivered his deed to this end, evidence of his acts, including herein his declarations after the time when it is contended he had so parted with title, is admissible and of great weight in the determination of this question.

APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge.

The facts are stated in the opinion of the court.

Hulme & Eckman, and Elmer B. Sanford, for Appellant.

Murphy & Poplin, for Respondent.

HENSHAW, J.-Plaintiff, sister of William J. Fisher, deceased, brought this action against the administrator of his estate to quiet her title to certain lands in the county of Los Angeles. Plaintiff's title admittedly rests upon an asserted conveyance to her of the lands by deed of her brother and his wife. The deed was never recorded and it was found amongst the personal effects of the brother after his death. The question in the case is whether or not there was a legal delivery of the deed made by deceased in his lifetime. The court found that such delivery was made. From the judgment which followed defendant has appealed.

Respondent interposes two preliminary objections to the hearing of this appeal upon its merits. Under the first she insists that in this appeal, taken under the new or alternative method, the reporter's transcript was not prepared and filed in time. Delays had occurred after the preparation of the transcript and its presentation to the judge for his approval and settlement and respondent had objected to the settlement by the trial judge for these reasons, and herein it is said that the phonographic reporter consumed thirtyeight days in the preparation of his transcript instead of the twenty days allowed by law; that instead of giving notice immediately the clerk wasted twenty-two days before giving notice to the attorneys. Respondent contends that the provisions of sections 953a, 953b, and 953c, of the Code of Civil Procedure, are jurisdictional as to the preparation of the transcript, which is a substitute for the bill of exceptions, in this relying on Boling v. Alton, 162 Cal. 297, [122 Pac. 461]. But respondent's contention in this regard is fully answered by Smith v. Jaccard, 20 Cal. App. 280, [128 Pac. 1023, 1026], the decision in which case came under the review of this court and was here affirmed.