¶1*297Denied May 13, 1919.
¶2On Petition for Rehearing.
¶3(180 Pac. 595.)
¶4On petition for rehearing. Denied.
¶5In Bane.
¶6Mr. Stephen A. Lowell, Messrs. Raley & Raley, Mr. W. M. Peterson, Mr. G. M. White and Mr. Frederick Steiwer, for the petition.
¶7Mr. James A. Fee, contra.
McBRIDE, C. J.¶8The brief upon the petition for rehearing practically travels over the same ground occupied by the original briefs, and most of the contentions therein seem to us io be sufficiently answered in the original opinion.
¶911. The test of testamentary capacity is well stated in the original opinion, but the following excerpts may serve further to elucidate the subject, and to distinguish between testamentary capacity and the capacity to contract generally.
‘ ‘ The result of the best considered cases on the subject seems to put the quantum of understanding, requisite to the valid execution of a will, upon the basis of knowing and comprehending the transaction or, in popular phrase, that the testator should, at the time of executing the will, know and understand what he was about. … It is sufficient if the testator knew what he was doing and to whom he was giving his property … and it is conceded in most of the cases that a man may be capable of making a will, and yet incapable of making a contract or managing his estate”: Brinkman v. Rueggesick, 71 Mo. 553, citing Ray Med. Jur. 313; 2 Redfield on Wills, Chap. 4, § 10; Thompson v. Kyner, 65 Pa. St. 368; Stubbs v. Houston, 33 Ala. 555. See, also, Stackhouse v. Horton, *29815 N. J. Eq. 202; Crossan v. Crossan, 169 Mo. 631 (70 S. W. 136).
¶1012. The evidence shows that at the time the will was executed, the decedent knew he was making a will; knew'the persons to whom he wished to devise his estate; knew of whát his estate consisted; knew the persons whom he wished to exclude from participation in his bounty, and gave an apparently intelligent reason for so excluding them, and unless we reject the testimony of' the subscribing witnesses absolutely, which we are not prepared to do, his condition measured up to every test laid down by the authorities for judging the capacity of a person to make a will. It is not sufficient to show that a testator had delusions upon some subject, if these delusions did not affect his mind in making his bequests: McClary v. Stull, 44 Neb. 175 (62 N. W. 501).
¶1113, 14. It is claimed that decedent was under an insane delusion that his deceased son Clark had embezzled his money, and that his practical disinheritance of Clark’s children was the result of this delusion. A delusion is a fixed belief in a proposition which has no foundation in evidence, and which is so extravagant that a reasonable man would not adhere to it. It is a fixed and extravagant belief that a fact exists where there is no evidence to furnish a basis to such belief. The rule in regard to this» matter is very similar to the rule adopted in this state in regard to the verdict of a jury. If there is any evidence to sustain the verdict it must stand. So here, if there is any evidence to support the belief, it is not a delusion: In re Scott’s Estate, 128 Cal. 57 (60 Pac. 527).
¶12The decedent’s belief in his deceased son’s dishonesty had some evidence to sustain it: First, the son took charge of decedent’s store, which was a *299profitable business, and left it an unprofitable business; second, many bills, which the books indicated were unpaid, were found 'upon the statements of reputable persons to have been paid, and these sums were not accounted for.
¶13Now these circumstances may be accounted for upon the theory of the son’s incapacity for business or carelessness in keeping his accounts, but, on the other hand, there are many business men who might adopt the same theory adopted by decedent, and attribute the losses to dishonesty and peculation; and this might be especially true with an old man who had conducted the business profitably himself, and who would not be likely to see any reason why his son could not have done the same. He would naturally ask:
“Why is it that my once profitable business shows a loss under my son’s management? What has become of the money which these debtors paid him, and for which there is no account?”
¶14So there was some evidence upon which deceased could found a perfectly natural belief that the son had not dealt fairly with him. That belief was probably a mistaken one, but it was not an insane delusion.
¶1515. His failure to make provision for Clark’s children was brought about, to a great extent probably, by the act of Clark’s widow in bringing an action against bim for wages for his son, which she claimed ■were earned by him while in charge of decedent’s store, and by a suit to compel the conveyance to his grandsons of two lots alleged to have been the property of Clark in his lifetime, both of which suits were settled by the guardian unfavorably to decedent and against his protests. The guardian probably acted for the best, but in view of the opinion decedent entertained in regard to Clark’s transactions while in charge of the store, the settlement must have been a bitter pill and *300left a feeling of resentment which showed itself in the will, and in his statement to Contts and Bingo, that Clark’s children had received enough. In this, he did not display that spirit of magnanimity and forgiveness which he might have exhibited, but the estate was his, earned by his industry and ability, and he had a perfect legal right to dispose of it as he chose.
¶1616. Upon the question of undue influence by Mark and his wife, the contestant-had the burden of proof, and we still take the view expressed in the original opinion, that the proof offered by them does not establish the .charge that such undue influence was exerted. Kind treatment and even reasonable solicitation do not constitute undue influence, and this is about as far as contestant’s testimony goes in this case.
¶17' 17. We believe decedent, while suffering some mental impairment as the result of old age and disease, yet retained sufficient independent mentality to know what he wished to do with his property, and that the will expressed his desire in that respect.
¶18The petition for rehearing is denied.
¶19Beversed and Bemanded. Bbhearing Denied.
