Reset A A Font size: Print

District Court of Appeal, Third District, California.


Civ. 5117.

Decided: October 19, 1934

Taft & Spurr, of Ukiah, for appellant. Hale McCowen, Jr., of Ukiah, for respondent.

This is an appeal from a judgment rendered pursuant to the special findings of a jury setting aside a previous order admitting a holographic will to probate, on the ground that the alleged will is a forgery.

George Golden, whose real name was George Linstead, died in Mendocino county February 29, 1932, possessed of real and personal property valued at about $25,000. His wife died long prior to the execution of the holographic will which is here involved. He left no heirs except three brothers, who reside in Montana, one of whom is the contestant herein, and Margaret Hauser, a niece, who lives in San Francisco. Golden left the East many years ago with another man's wife, and changed his name on that account. He had been a resident of Fort Bragg and was prominent in business and politics in Mendocino county for more than thirty-five years. E. T. Stoddard was also a resident of Fort Bragg and was prominent in that community in business and politics during that period of time. He was successively a contractor, the manager of a stage route and of a gas station on the Redwood highway. He possessed a good reputation and was a close personal friend of Golden for thirty-five years prior to the death of the testator. In September, 1931, after the death of his wife, Mr. Golden suffered a stroke of paralysis and was afflicted with diabetes. He told Joseph Olinsky, a friend of his, in the summer of 1931, that “he had some brothers in Montana and a niece somewhere about the Bay there, but he had been out of touch with them for a good many years, and they meant nothing to him; that was after his wife had died. And, he said he did not expect to leave his relatives anything. That he had some good friends, Dave Miller and Ed Stoddard, and that he would leave his property to them.” Stoddard was in communication with his friend Golden up to within six months of his death. Stoddard testified that he drove in his automobile to the Piercy post office, about four miles from his gas station, on January 20, 1932, where he received by mail the will and a letter from Golden, which he examined and “put them in a leather pouch in which I carry my mail and placed them in the front seat of my automobile.” He also claimed to have received another typewritten letter from Golden, which he carried into his gas station and placed on the cash register, but afterwards destroyed it. This was before the death of Golden. When he afterwards looked for the will and accompanying letter from Golden, he failed to find them. He searched in vain for them, and concluded he must have lost them. He did not tell his wife about the lost will until about March 3, 1932, after he learned of the death of Golden. The holographic will and accompanying letter purport to be in the handwriting of Golden, and are in the following language:

“Nov. 27th, 1931.

“For and in consideration of the friendship and friendly love for E. T. Stoddard and for other considerations that has existed for the last twenty five years it is my last will to give and grant unto E. T. Stoddard one half of my estate at the time of my death any thing it may consist of at that time.

“Geo. Golden.”

“Fort Bragg, Cal. 1/18/32.

“Mr. Ed. Stoddard, Piercy, Cal.

“Dear Ed. Pleased to hear you are in good health. My sick spell hangs on like the devil and dont get any better. No dident expect you over as it has been raining all the time cold as the mischief. Now Eddie inclosed find document for you and should any thing happen to me you will have same.

“Wishing you all the best of good luck let me hear from you.

“Geo. Golden.”

The preceding letter is not included in the bill of exceptions. Soon after the death of Mr. Golden, Austin Smith was riding in May, 1932, with Mr. Stoddard in his automobile when they were forced to stop because of a flat tire. He testified that he lifted the cushion of the front seat to procure some tools with which to repair the flat tire, when a mouse jumped out. He said: “I rummaged around for the pump and got it out and while I was pumping up the tire a mouse ran out of the car. When Ed came over there I said ‘Ed, do you know there are mice in your car? I saw one run out.’ Then he went to looking in the car and pulled out the front cushion, and a leather pouch fell out and the contents came out and fell to the ground. I started to pick them up and handed him an envelope. He said, ‘That's the thing I have been looking for for sometime.’ He opened it up and I looked at it. It was a will signed by George Golden and a letter. I identify Exhibits 10 and 11 as being the same documents. We went over to the store and I got a sandwich and was eating the same at the counter and looking at the will.”

Mr. Golden died February 29, 1932. Stoddard did not learn of his death until March 3d. He searched for the will, but did not find it, as above related, until the following May. In the meantime he told his wife of the lost will and also informed Leonard Stone, an attorney at Fort Bragg, of that fact. There is substantially no conflict of evidence regarding the foregoing facts, except the circumstances which will be hereafter related.

Upon petition therefor, the public administrator of Mendocino county was appointed and qualified as administrator of the estate of George Golden, deceased. After the discovery of the will, it was filed May 9, 1932. On petition of E. T. Stoddard, it was admitted to probate May 27, 1932, and Margaret L. Hauser, the niece of deceased, was appointed and qualified as administratrix with the will annexed of the estate of George Golden, deceased. October 10, 1932, W. J. Linstead, of Montana, a brother of the deceased, filed a petition to revoke the probate of the holographic will on the sole ground that the document is not in the handwriting of the deceased. An answer to this petition was filed by the legatee, E. T. Stoddard. The cause was tried with a jury. Special issues were submitted to the jury, which found that the purported will dated November 27, 1931, was neither written, dated, nor signed by the hand of George Golden. A general verdict was also returned in favor of the plaintiff. Pursuant to the special findings and general verdict of the jury, the court rendered judgment February 2, 1933, revoking the letters of administration theretofore issued to Margaret Hauser, and denying probate of the will. From this judgment E. T. Stoddard has appealed.

It is contended the probate court was without jurisdiction to hear or determine the petition to revoke the probate of the will, for the reason that all of the persons interested in the estate were not parties to the contest; that the former order of court made on May 27, 1932, admitting the will to probate, is res judicata for the reason that the petitioner, W. J. Linstead, had full knowledge of that proceeding; that the judgment is not supported by the evidence; that the trial judge and counsel for the petitioner in this proceeding were guilty of prejudicial misconduct; and that the court erred in rejecting competent evidence.

The court properly denied the appellant's motion to dismiss the petition to revoke the probate of the will. This motion was made on the ground that the court was without jurisdiction to hear and determine the contest of the will for the reason that the citation had not been served upon all heirs of the deceased, as required by sections 381 and 382 of the Probate Code, and that the interested parties were not all represented in the proceedings. It is true that the citation of the time and place of hearing the contest was served upon the brothers of the deceased who reside in Montana only by mail. This does not conform to the requirements of section 370 of the Probate Code, which directs the citation to be served “personally or by publication in the manner provided by law for the service of summons in civil actions.” Two of the brothers of the deceased failed to appear in the contest of will. Personal service was made on the sole devisee of the will, Stoddard, and upon Margaret Hauser, the administratrix with the will annexed. The petition to revoke the probate was filed and prosecuted by W. J. Linstead, one of the brothers of the deceased. The proponent of the will might have moved to continue the contest until other proper parties were brought into the proceeding. Other heirs and interested parties are, however, precluded from contesting the will under the provisions of section 380 of the Probate Code for failure to file their petition to revoke the probate within six months after the will was admitted to probate.

This defect of service of the citation did not divest the court of jurisdiction to hear and determine the contest between the parties who were properly before the court.

It has been held that “the trial court was without jurisdiction to proceed with a hearing of the contest for the reason that the citation mentioned in sections 1328 and 1329 [now sections 381 and 382, Probate Code] of the Code of Civil Procedure was not served upon all the legatees under the will.” In re Estate of Visaxis, 95 Cal. App. 617, 273 P. 165, 167. In the case last cited the court further says: “We can see no reason why a will contest should not proceed as between the contestant and those upon whom the citation is served. It is settled that jurisdiction over a will contest attaches upon the filing of the petition. In re Estate of Maescher, 78 Cal. App. 189, 248 P. 537.”

A petition for hearing in that case was denied by the Supreme Court. It follows that the trial court had jurisdiction in the present proceeding to hear and determine the petition to revoke the probate of the will, between the parties who appeared in court, in spite of the fact that all of the parties interested therein were not before the court, although the judgment would not be binding upon such heirs or interested persons who were not properly served with citation until after the lapse of six months after probate was granted, during which time they were permitted to contest the validity of the will.

The court did not err in sustaining the respondent's objection to an offer on the part of the appellant to rehabilitate the testimony of Mr. Stoddard with respect to a statement that he had written Attorney Leonard Stone a letter telling him that he had a holographic will which was executed by George Golden. While Stoddard was being examined by the respondent under the provisions of section 2055 of the Code of Civil Procedure, he was asked if he had ever told any one, other than his wife, that he had the holographic will of Golden. Stoddard replied that he had written Attorney Stone to that effect. He was then asked if Stone had replied to that letter. Stoddard said that Stone had written to him, but that he had destroyed his letter. Subsequently, when Leonard Stone became a witness in behalf of the appellant, he was asked if he had received a letter from Mr. Stoddard regarding the will. An objection to this question on the ground that it was incompetent, hearsay, and self-serving, was sustained, for the reason that the appellant sought to prove the contents of the letter, rather than the mere fact that Stone had received such a letter. Mr. McCowen, attorney for contestant, said: “If all you want to prove by this witness is the receipt of a letter from Mr. Stoddard, our objection will be withdrawn.” Attorney Taft replied, “We expect to prove the contents of that letter.” It is therefore clear that the objection was sustained on the theory that the appellant sought to prove the contents of the letter rather than the mere receipt thereof. That would have been self-serving and hearsay evidence. He did have a right to prove that Stone received a letter from him concerning the will. Davis v. Tanner, 88 Cal. App. 67, 262 P. 1106. But that privilege was not denied him. The court correctly ruled that the appellant was not entitled to prove the contents of the letter.

We are unable to say that the challenge of the attorney for contestant to the appellant to call a witness whom he knew to be intoxicated was prejudicial misconduct. The witness was called and examined, and his evidence was favorable to the appellant. If his evidence was discredited because of his intoxicated condition, the record fails to disclose that fact.

We are of the opinion the court properly denied the appellant's motion to dismiss the petition of W. J. Linstead to revoke the former order admitting the will to probate. The motion was made on the ground that the brother was precluded from maintaining the proceeding under the provisions of section 380 of the Probate Code because he had actual knowledge of Stoddard's petition to probate the will a short time after it was filed. Section 380 of the Probate Code provides: “When a will has been admitted to probate, any interested person, other than a party to a contest before probate and other than a person who had actual notice of such previous contest in time to have joined therein, may, at any time within six months after such probate, contest the same or the validity of the will.”

The will was filed May 9, 1932. The petition to probate it was filed by Stoddard on the same day. The original contest to the probating of the will was filed May 23, 1932, by the public administrator. The public administrator was not such an “interested person” as would entitle him under the provisions of sections 370 or 380 of the Probate Code to contest the will. In re Estate of Sanborn, Deceased, 98 Cal. 103, 32 P. 865, 866. In the case last cited it is said: “A public administrator has no interest in an estate, or in the probate of a will. That is a matter which concerns only those to whom the estate would otherwise go.”

W. J. Linstead is a brother of the deceased, and is therefore interested in the estate so as to entitle him to maintain a contest to the will or a petition to revoke the probate thereof after it had been admitted, pursuant to the provisions of section 380 of the Probate Code. He lives in Montana. He did not know of the petition to probate the will until after May 9th, when it was filed. It was actually admitted to probate eighteen days later, on May 27th. In the absence of evidence to the contrary, we are unable to say, as a matter of law, that eighteen days' notice to one who lives 2,000 miles away in Montana is sufficient time to have enabled him “to join therein.” There is no evidence that Linstead knew when the petition for probate of the will would be heard. Moreover, since the public administrator was not entitled to maintain a contest to the will, it may not be said there was a valid contest of the will which would preclude Linstead under section 380 of the Probate Code from subsequently petitioning the court to revoke the probate thereof.

For the reason that there was no valid contest of the will by the public administrator which would preclude Linstead from maintaining a subsequent contest thereof under section 380 of the Probate Code, the court properly refused to submit to the jury the special issue which was proposed by the appellant in the following language: “Did W. J. Linstead have actual knowledge of the probate of the will on May 27th, 1932, and the contest raised by the pleadings filed by E. T. Stoddard, W. F. Ornbaun and Margaret Holt Hauser?” Margaret Hauser was not a contestant of the will. She was a proponent of the will, and merely asked that she be appointed administratrix with the will annexed in the event that the will was admitted to probate.

For the reasons heretofore assigned, the order admitting the will to probate on May 27, 1932, was not res judicata so as to bind W. J. Linstead thereby and preclude him from maintaining a subsequent petition to revoke the probate of the will under the provisions of section 380 of the Probate Code.

In view of the fact that the evidence appears to preponderate strongly in favor of the genuineness of the will and against the special findings of the jury, we are of the opinion the challenged language which was uttered by the judge in the presence of the jury, inferring that he believed the will was forged, was prejudicial to the appellant, and that it constitutes reversible error. It is contended the impression which was conveyed to the jury from these statements of the judge was that he believed the will and accompanying letter were “a part of a fraudulent scheme” on the part of Stoddard to forge the instruments, and that he “mailed them to himself during the illness of Mr. Golden, or had a confederate mail them to him” for the wrongful purpose of procuring a part of the estate, and that he discredited the testimony of Stoddard for the reason that it contained “inconsistencies as to the destruction” of the typewritten letter which the witness said that he had also received from the testator.

The challenged statements were made in the following manner: Counsel for the contestant of the will was examining Stoddard under the provisions of section 2055 of the Code of Civil Procedure. He had been questioning the witness regarding the contents of this typewritten letter which Stoddard said he placed on his cash register and afterwards destroyed. He said he did not recall the contents of the letter except that it contained “some things that had happened between” himself and Golden which the deceased wanted to keep secret. His attention was then called to an alleged discrepancy between that statement and a former one which was contained in a printed transcript. To this evidence the attorney for the appellant objected. Contestant's counsel then said the comparison of the statements of the witness is important because Stoddard said that Golden “sends him two letters reaching him at the same time and he destroys one and, according to his testimony, one set of facts existed at the former hearing, and now we maintain he is testifying to some other thing different.” The following colloquy on that subject occurred:

“The Court: You contend, Mr. McCowen, of course, that this will and the letter which accompanied it, and the envelope in which it was received, were all a part of the fraudulent scheme, and were all a part of one forgery, do you not?

“Mr. McCowen: Yes, your Honor.

“The Court: And consequently, the basis of that contention must be that either the witness Stoddard mailed it to himself during the illness of Mr. Golden, or had a confederate mail it to him, and that the letter which was received at the same time would contain absolutely inconsistent material?

“Mr. McCowen: Yes, your Honor.

“The Court: And [the typewritten letter] was one of the true authorship of George Golden. Well, I think the destruction of that letter, under the theory counsel is proceeding under, the destruction of it and all circumstances connected with the destruction of it, including inconsistencies as to the destruction of it, are material.”

Furthermore, the court interrupted the cross-examination of Chauncey McGovern, the handwriting expert who had been trying to support his opinion that the will was genuine by a comparison of the handwriting contained in the will and letter with acknowledged exemplars of the genuine handwriting of the deceased. The court said:

“Before you leave the subject of that ‘G’; when you find in a questioned document a number of ‘G's' occurring in the middle and all finished with a straight down stroke and no loop, and you find in the admitted documents the ‘G’ finished with a loop in all cases, except where it is a double ‘G’ in the words ‘Fort Bragg,’ does that not convey to you some suspicion of the genuineness of the suspected document? A. Yes, if that's the only thing I observed, but when I observed that and observed many other things on the other side–

“The Court: But it does convey to you a suspicious circumstance which has been overcome by a preponderance of other facts?”

On further cross-examination of this same witness, counsel for the contestant was asking if it were not a suspicious fact that a penman varied from his usual habit in making a capital “E.” To this question the witness was explaining that the variance in forming letters may be due to the writer's haste in one instance and to his cautious or more deliberate acts at another time. The court interrupted his examination at this point by saying: “The Court: Well, do I understand you to say that the questioned documents in your opinion were written cautiously?”

The inference is that they were written fraudulently. The foregoing statements of the judge and his suggestions regarding the theory of the contestant's case and the effect of the evidence clearly infer that the judge believed the will and letter were forgeries. We are unable to see how the jury could have avoided receiving that impression.

Under the circumstances of this case, it appears that the jury must have been prejudicially influenced by the inadvertent statements of the judge. We would not be disposed to place great stress on the rule of law which vests the jury with the exclusive province of determining the weight and effect of the evidence and which precludes the court from making prejudicial statements which are likely to influence their judgment, except for the fact that the great weight of the evidence appears to support the validity of the will and that the evidence is in conflict with the findings of the jury. Experience teaches that many jurors, doubtful of their own judgment respecting the issues of a case, with justifiable confidence in the training and ability of the trial judge, are keen to observe and follow any suggestion which he may express to aid them in reaching a solution of their problems. In reversing a judgment on account of prejudicial statements of the judge which were made in the presence of the jury, the Supreme Court said in that regard in the case of Berguin v. Pacific Elec. Ry. Co., 203 Cal. 116, 120, 263 P. 220, 222: “It needs no citation to convince any unbiased observer that a jury has both ears and eyes open for any little word or act of the trial judge, from which they may gather enough to read his mind and get his opinion of the merits of the issues under review.”

We are confident the trial judge did not intentionally express his opinion to the jury that the will was forged, but his language certainly conveys that impression, and it seems evident from the verdict that the jury must have been prejudiced thereby. The innocent purpose with which the language was uttered is wholly immaterial. We are to be guided by the result rather than the purpose. The primary object on appeal is to construe a record according to the established rules of law so as to assure litigants of a fair and impartial trial, if possible.

The rule with respect to the effect of prejudicial utterances or conduct of a trial judge applies with peculiar force to the proceedings with relation to the contest of a will for the reason that it is a well-recognized fact that jurors are prone to upset wills which do not accord with their personal views of justice. Too great hostility is exhibited on the part of jurors against the efforts of testators to devise their property to individuals other that their blood relations. Too frequently jurors assume that such devises are unjust and inhuman, and that it is their duty to correct the assumed injustice. But from ancient time the law has recognized the absolute right of a testator, who is of sound mind and free from undue influence, to dispose of his property by will as he desires. Under such circumstances the expressed wish of the testator is paramount. In Re Estate of Morey, 147 Cal. 495, 505, 82 P. 57, 61, our Supreme Court has said in that regard: “The right to dispose of property in contemplation of death is as old as the right to acquire and possess property, and the laws of all civilized countries recognize and protect this right. It seems, however, to be the impression among many that if the property is not disposed of as the surviving relatives, near or remote, may think it should have been disposed of, the decedent must have been incompetent to transact business, or was acting at the time under undue influence of some kind.”

To this assertion we may add that jurors who are not satisfied with the manner in which property is devised too frequently find some flimsy excuse for setting such wills aside. The case last cited quotes approvingly from In re Carriger, 104 Cal. 81, 84, 37 P. 785, 786, as follows: “To set aside a will * * * is a serious matter, and a verdict having that effect should be closely scrutinized by the trial judge. The upsetting of wills is a growing evil.”

In Re McDevitt, 95 Cal. 17, 33, 30 P. 101, 106, the late Mr. Justice Temple said: “The right to dispose of one's property by will is most solemnly assured by law, and is a most valuable incident to ownership, and does not depend upon its judicious use. The beneficiaries of a will are as much entitled to protection as any other property owners, and courts abdicate their functions when they permit the prejudices of a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what was just and proper.”

Realizing that this tendency exists on the part of juries to set aside wills for inadequate causes, there is greater reason why a judge should be extremely cautious to avoid any suggestions which may prejudice the jurors.

Regarding the caution which should be exercised by a judge to avoid conveying an intimation to the jury of conviction or prejudice, regarding the weight or effect of evidence or the credibility of witnesses, it is said in 84 A. L. R. pages 1172, 1181, notes:

“The trial judge in a criminal case should not by the form, manner, or extent of his questioning indicate to the jury his opinion as to the defendant's guilt, or as to the weight or sufficiency of the evidence. * * *

“It is generally held that a trial court's interrogation of a witness is improper where it amounts to an indication to the jury of his opinion as to the merits of the defense, or as to the weight or sufficiency of the evidence.”

The rule above announced applies with equal force to a civil action before a jury.

In 40 Cyc. 2439 it is said: “It is proper for a trial judge to ask a witness questions for the purpose of informing himself or the jury as to any matters material to the issues, whether the case be a civil or a criminal one, provided the questions are not such as to injure or prejudice the rights of either party. But the examination of witnesses is the more appropriate function of counsel, and the power of the court to interrogate witnesses should be exercised only in rare instances and under exceptional circumstances, most carefully, and in such a way as will not tend to prejudice the jury against either party.”

In 64 C. J., p. 97, §§ 101-108, it is said in that regard: “It is improper for the judge presiding at the trial of an action to express or indicate, directly or indirectly, to the jury or in their presence or hearing, any opinion as to the credibility of evidence or a witness. * * * It is improper for the judge presiding at a trial to indicate, by any comment or remark made in the presence and hearing of the jury, his opinion as to the weight or sufficiency of any evidence in the case, or as to what has or has not been established. * * * The judge presiding at a trial should make no remark or comment in the presence and hearing of the jury which tends to emphasize or minimize the value, weight, or effect of evidence admitted. So comments tending to weaken or strengthen the effect of expert testimony are improper. * * * Improper remarks or conduct on the part of the judge presiding at the trial of an action may ordinarily be cured, or the impropriety obviated, by admonishing or instructing the jury to disregard them, * * * but where a remark or conduct is so prejudicial that the impression thereby produced in the minds of the jury cannot reasonably be expected to be removed by an admonition or corrective statement, the impropriety is not thereby cured.”

Aside from some circumstances which the contestant claims infer that the will was forged, and the testimony of one handwriting expert who so declared, many circumstances support the will, and six expert witnesses testified to the validity of the instrument and the genuineness of the signature of the testator.

Under the circumstances of this case, it does not seem unreasonable that Mr. Golden should have devised one-half of his property to his friend Stoddard, since the testator had been separated from his relatives most of the years of his life. He left the East “under a cloud.” His wife was dead. He had no children. He told his friend Olinsky of these facts and said he did not intend to give his property to his relatives, but that he was going to will it to his friends Miller and Stoddard. Evidently Golden must have been a man of considerable ability and standing in his community. He had acted as justice of the peace, city marshal, and deputy county assessor. There can be little doubt of his friendship for Mr. Stoddard. Seven witnesses testified to that fact. There are but two trivial circumstances which may be said to contradict that claim of friendship. It does appear that in 1920, ten years before the will was drawn, Stoddard, as a member of the Fort Bragg city council, voted against Mr. Golden for city marshal, and Mr. Miller, who testified that he had expected Golden to leave his property to his adopted son, of whom the testator was fond, said that a woman once informed Golden, while he was marshal of Fort Bragg, that Stoddard was “asleep in his car on the Plaza,” and suggested that he be taken care of. Miller testified that the woman said that Golden merely cursed Stoddard as a drunken s- of a b-ch, and paid no attention to him. These circumstances seem of small importance. There is no other evidence that Golden and Stoddard were not always the best of friends. They had been associated in business and political affairs of Mendocino county for nearly thirty-five years on apparently the friendliest of terms. Five witnesses testified that the reputation of Stoddard for truth, honesty, and integrity was good in that community. Evidently he did bear a good reputation. As a councilman, as a contractor, and as a business man of some prominence on the Mendocino coast, the integrity of Mr. Stoddard was not questioned. The evidence indicates that neither his business training nor his natural talents would fit him for the task of successfully forging a name, much less of simulating the handwriting of another person in two entire documents. The intimation of respondent was that Stoddard forged the documents; yet there was no attempt to prove that the penmanship of the challenged will resembles his handwriting. Apparently no comparison was made of the handwriting of the will with that of Mr. Stoddard's penmanship. Two professional experts on handwriting were called as witnesses from outside the county. One of them declared that it was his opinion the will was a forgery. The other, with equal confidence, declared that it was genuine. It may be said that character of evidence was evenly balanced. Five other prominent reputable expert witnesses, who live in and about Fort Bragg, testified positively of their acquaintance with George Golden, their familiarity with his handwriting, and their belief that the will contained his genuine signature. No other evidence on that subject was adduced. The evidence which was furnished by the resident experts of the genuineness of the testator's handwriting contained in the will is very persuasive. Mr. Bolden, the cashier of the Coast National Bank of Fort Bragg, testified that he had known Golden for years, that he had conducted business with him at the bank, that he knew his handwriting and that both the will and the letter were in George Golden's handwriting. He further said he would be willing to cash a check for $5,000 on that signature. Carl Sauer, the manager and cashier of the Fort Bragg branch of the Bank of America, testified that he had known George Golden for many years and that he was familiar with his handwriting. He declared that the signatures on the two challenged documents were the genuine signatures of George Golden, and that he would not hesitate to cash a check upon those signatures. Mr. Reynolds, the county assessor under whom George Golden acted as a deputy for several years, testified that he had received hundreds of documents signed by the deceased. He said he had often seen him write his name, that he was familiar with his signature, and that the will and letter contain the genuine signatures of George Golden. Leonard Stone, an attorney of Fort Bragg, said he had often seen the deceased write his name as a justice of the peace in that township, that he was familiar with his handwriting, and that the will and letter in question contain the genuine signatures of George Golden. Frank Caughey, the former clerk of the Supreme Court, testified that he had examined the city books of Fort Bragg as an expert while Golden was its city recorder. He asserted that he had often seen him write, that he was familiar with his handwriting, and that the signatures on both the will and the letter in dispute are the genuine signatures of the deceased.

It is true that the rule with respect to assigning the conduct of a judge or of counsel as prejudicial ordinarily requires an objection to be made thereto in the course of the trial so as to afford the trial judge an opportunity to correct the prejudicial impression. But there is a clear exception to that rule when it appears that the challenged statements are of such a nature that their effect may not be cured by an explanation or by instructions to the jury. 64 C. J. 103, § 108; Hughes v. Hartman, 206 Cal. 199, 206, 273 P. 560, 563.

In holding that an assignment of prejudicial error on the part of the trial court was waived on appeal by failure to object to the challenged statements, the Supreme Court said in the case last cited: “This rule might not apply where the remark was of such a character that its prejudicial effect could not be cured by any subsequent action by the trial court. The remark of the court in the present action, of which complaint is made, is not of such character.”

For an attorney to challenge the statements of a judge in the presence of the jury frequently serves to emphasize and aggravate the prejudicial effect thereof. That fact is well illustrated by the record in the case of People v. Mahoney, 201 Cal. 618, 258 P. 607, in which the judgment of conviction of manslaughter growing out of the collapsing of a grandstand at Pasadena was reversed.

In support of his contention that the appellant waived his right to assign the prejudicial character of the court's remarks as error on appeal, the respondent cites Price v. Northern Elec. Ry. Co., 168 Cal. 173, 142 P. 91; Hughes v. Hartman, 206 Cal. 199, 273 P. 560; Loeb v. Kimmerle, 215 Cal. 143, 9 P.(2d) 199; Bartolini v. Andrioli, 123 Cal. App. 350, 11 P.(2d) 66; Hughes v. Duncan, 114 Cal. App. 576, 300 P. 147; and Foley v. Hornung, 35 Cal. App. 304, 169 P. 705. Upon examination of these cases we find nothing in conflict with the foregoing statement of the exception to the general rule announced to the effect that an assignment of prejudicial error is not waived by failure to object to the conduct or utterances at the trial when it is apparent that the effect thereof will not be cured by subsequent explanation or instructions to the jury. In most of the cases relied upon by the respondent the language complained of does not appear to have been prejudicial. We are persuaded that the rule with respect to a waiver of an assignment of prejudicial comments of court or counsel by failure to object thereto, in the interest of justice, should not be extended beyond its present application by the courts, and that, when it appears that such conduct is prejudicial and cannot be remedied by subsequent action of the court in a case where the judgment is clearly contrary to the great weight of evidence, the assignment of error on appeal should not be deemed to have been lost by a failure to object thereto in the course of the trial.

For the reasons that we deem the remarks of the trial judge to have been prejudicial to the appellant, and that the weight of the evidence is contrary to the findings of the jury, the judgment is reversed.