Estate (Pa.), 110 Atl. 760). It is almost impossible to conceive that the testatrix, knowing, as she must be held to have known, that her son was the sole heir at law, taking the word "heir" in the technical sense, would have used this language, "distributed among my heirs," etc., to indicate a gift to him.

Especially is this true in view of the fact that wherever before or after these words she referred to her son in the will she designated him as "my son, Thaddeus McConnell," or "my said son," or "my said son, Thaddeus McConnell," indicating that in every case where she intended to provide for or refer to him, she thus described him. If she had intended him or his heirs or devisees to take the real property absolutely in the event that he died after her leaving no issue, would she not necessarily have said, in view of the way in which she had theretofore referred to him, that in that event the real property was to be distributed to "my said son or to "the heirs or devisees of my said son" instead of "shall be distributed among my heirs," etc?

Furthermore, the intention to limit the interest of the son in the real property to a life estate appears to be most definitely and clearly expressed. Not only did the testatrix say that she gives the property to him "to have and to hold the same for and during the term of his life; and at his death the same shall go to and be the property of his then living children," but she went further and said, "it being my intention to devise unto him a life estate in the whole of said realty, with remainder over at his death, to his then living children," following this with the provision that "if he leave no issue, then upon his death, all such real property shall be distributed among my heirs," etc. It seems clear that in so far as her son was concerned, the provisions specifically made for him were intended to be the sole provisions in his behalf, and that by the term "my heirs" who were to take in default of issue of her son surviving him was meant her next of kin other than her son.

This view is strengthened by the provision made in the next paragraph as to those who shall take her property if her son should die before her. If he died leaving issue, the property was to go to such issue, but if he died before her without issue, then she gives all her property "unto my heirs the same to be distributed among them according to

the Californian laws of succession in cases of intestacy," to the entire exclusion of the wife of the son, or any heir, devisee, or legatee of the son.

Particular reliance is placed by counsel for respondent on the words following "my heirs," viz.: "as provided by the laws of the state of California, the same as if I had died intestate," but we do not see that they strengthen their claim that the son was intended to be included within the term "my heirs." Obviously, this language referred simply to the manner of distribution among the persons constituting "my heirs" "among" whom the property was to be distributed. She gives the property to "my heirs" to be distributed among them in the same manner as is provided by law in cases of intestacy. This thought was clearly in mind with regard to the succeeding paragraph, the paragraph dealing with the property in the event that the son died before her, and is perhaps better expressed therein. She there gave the property in a certain contingency "unto my heirs the same to be distributed among them according to the Californian laws of succession in cases of intestacy." In each the idea is that the property is given to the persons denominated "my heirs" to be apportioned among them in the manner provided by the succession statutes in case of intestacy.

As we have practically said, it is clearly manifest on the face of this will, when considered as an entirety, that the testatrix could not have intended her son or any person claiming under her son to be included within the "my heirs" "among whom" in a certain contingency the real property was to be distributed. Considering the will in its entirety, the scheme of the testatrix is perfectly clear to our minds. If her son died before her leaving issue, she desired such issue to have all her property, and if he died before her without issue surviving, she desired her own relatives to have all the property, to the utter exclusion of any person or persons taking solely under the son. If he survived her, she desired him to have all her personal property as his own, and a life estate only in her realty, with remainder to any of his children who survived him, but if, surviving her, he died without issue surviving him, she desired the real property to go to her next of kin, other than her son.

The case is one where "the context clearly indicates" (Civ. Code, sec. 1327) that the word "heirs" was not used in the strict technical sense as designating the person or persons who would have succeeded under our succession statutes to the estate of deceased had she died intestate, but was intended to designate only those who would have been her heirs at law but for her son, either at the time of her death or at the termination of the life estate by the death of the

son.

Whether in view of the language of the will such heirs are to be determined as of the date of the death of the deceased or as of the date of the death of the life tenant is a matter of no great moment to the respondent, who was not entitled to any of the real property in dispute in either event, but we think it clear that the intention was that they should be determined as of the date of the termination of the life estate. Apparently those who appeared to claim the realty as against the respondent in the lower court would have been entitled to the great bulk of the realty in either event, all being "heirs" of the deceased but for the son and his issue both at the date of the death of deceased, and at the termination of the life estate. If the heirs are to be determined as of the date of the termination of the life estate, as we think is the proper construction of the will, such claimants constitute the whole of the heirs to whom such realty is given, and they are entitled to distribution thereof.

The decree of distribution and the order settling the accounts are reversed.

Olney, J., Shaw, J., Lawlor, J., Sloane, J., and Lennon, J., concurred.

Rehearing denied.

In denying a rehearing the court filed the following opinion on November 5, 1920:

THE COURT.-The petition for a rehearing is denied. In view, however, of the application for modification of the opinion filed herein by one Thomas McConnell, claiming to be an "heir" of deceased within the meaning of the will,

and in order that he and others similarly related may not be prejudiced by anything said in the opinion, the last paragraph of the opinion is hereby amended to read as follows:

"If the heirs are to be determined as of the date of the termination of the life estate, as we think is the proper construction of the will, in so far as the record before us shows such claimants constitute the whole of the heirs to whom such realty is given."

Angellotti, C. J., Shaw, J., Olney, J., Lawlor, J., and Lennon, J., concurred.

Wilbur, J., dissented from order denying rehearing.
Sloane, J., was absent.

[S. F. No. 9613. In Bank.-October 11, 1920.]

WILLIAM HARTIGAN, Petitioner, v. FRANK C. JORDAN, as Secretary of the State of California, et al., Respondents.

[1] ELECTIONS-NOMINATION OF CANDIDATE BY ELECTORS-TIME FOR FILING NOMINATION PAPERS.-A candidate for the office of member of the assembly for an assembly district situated in the city and county of San Francisco, nominated by electors as provided by section 1188 of the Political Code is not entitled to have his name go on the election ballot where his nomination papers are not filed with the registrar of voters of the municipality forty days prior to the day of election.

APPLICATION for Writ of Mandamus to compel printing of name of candidate on general election ballot. Denied.

The petitioner was a candidate for election to the office of member of the assembly for an assembly district in the City and County of San Francisco.

William Hartigan, in pro. per., for Petitioner.

THE COURT.-[1] Petitioner's nomination papers under section 1188 of the Political Code were not presented to the

registrar of the city and county of San Francisco for examination until September 25, 1920. This was not forty days prior to the general election of November 2, 1920. It results that he is not entitled to have his name go on the ballot. (Pol. Code, sec. 1188; Primary Law, sec. 5, [Stats. 1913, p. 1383].)

The application is denied.

All the Justices concurred.

[S. F. No. 9329. In Bank.-October 11, 1920.]

In the Matter of the Estate of HENRY CASAROTTI, Deceased. ROMEO CASAROTTI, Respondent, CORNELIUS P. LYONS, Appellant.

V.

- WILL CONTEST MENTAL IN

[1] ESTATES OF DECEASED PERSONS COMPETENCY-BURDEN OF PROOF.-In a proceeding to revoke the probate of a will on the ground of mental incompetency, the burden of proving the incompetency rests with the contestants. [2] ID.-MENTAL INCOMPETENCY SUPPORT OF VERDICT - REVIEW OF EVIDENCE.-In determining the sufficiency of the evidence to support a verdict and judgment revoking the probate of a will on the ground of mental incompetency, the testimony of proponent's witnesses must be taken into account, as well as the evidence of the contestants.

[3] ID.-MENTAL CONDITION PRIOR AND SUBSEQUENT TO EXECUTION OF WILL-EVIDENCE-TESTIMONY OF ATTENDING PHYSICIAN.-In a proceeding to revoke the probate of a will on the ground of mental incompetency, the attending physician's testimony as to the testator's mental condition before and after the execution of the will is admissible only as it tends to show such condition at the very time the will was made.

[4] ID.-WEAKNESS AND IMPAIRMENT OF FACULTIES - EFFECT UPON TESTAMENTARY CAPACITY. It is not every weakness and impairment of the faculties of the testator that will invalidate a will. Even where a testator is feeble in health, suffering under disease and aged and infirm, yet if he was of sufficiently sound mind to be capable of understanding the nature and situation of his property, and of disposing thereof intelligently, without any delusions affecting his action, he had sufficient capacity to make a will.