The opinion
Tolman, J.
(dissenting) — The facts in this case should be approached from the standpoint of the trial judge who saw and heard the witnesses and who, presumably, gathered the true situation, not alone from the words spoken, but from all of the surrounding circumstances and from the mental attitude disclosed and the demeanor of those testifying.
It is a well known fact that the most honest witness, when his sympathies are aroused and when aided by even a slight tincture of race prejudice, is prone to exaggerate. If allowance be made for these human
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failings, it is at once apparent that the evidence does not preponderate against the findings of the trial court.
While the majority opinion quotes copiously from the testimony, it by no means gives all of the material evidence, and failing to allow for the tendency to exaggerate, already mentioned, it, in my opinion, presents a picture which is unfaithful to the true situation. If the testimony of appellants’ principal witnesses is to be taken literally and to be believed implicitly, as the majority seems to hold, then of course it was a physical impossibility for the decedent to have made known to anyone his wishes and desires as expressed in the will. But, upon the other hand, respondents’ witnesses, while admitting a considerable difficulty in articulation, were just as positive in their positions that, by the exercise of care, attention, patience and the use of considerable time and skill, the decedent’s wishes and desires could be and were clearly ascertained. There is much in the surrounding circumstances which tends to confirm the respondents ’ witnesses; and, taking the whole record and considering it carefully, I, for one, am wholly satisfied that, prejudice aside, it cannot be said that the evidence preponderates against the findings of the trial court.
At first thought it might be said that the terms of the will giving, or attempting to give, substantial benefits to Japanese children of American birth, and to the Japanese tenant of the farm, is such an unnatural disposition of the decedent’s property as to raise a presumption against the will; but when the history and characteristics of the testator are studied, that thought loses its force. The decedent was born on this farm. For the greater part of his life he owned, controlled and zealously conserved and man
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aged it. He devoted Ms life to the farm and it supported and provided for him. Without wife or cMl-dren and with no close personal relations with anyone after the death of his parents, the farm became his one overshadowing interest in life. To take an acre from it was like taking a member from his body, and although he had frequently declared he would never make a will, yet, presumably, he in the end saw that the best and, perhaps, only opportunity for keeping the farm intact after his death was to give a home tract to the American born Japanese children, with a life lease on the remainder to the Japanese tenant. He was thus assuring that his beloved farm would continue in the same care under which it had prospered for twenty years, and delaying, by the life term of the Japanese tenant, the time for its being dismembered and cut up and sold as city or suburban building sites. This thought, coupled with an ancient grudge against those relatives disinherited, makes the will understandable and logical and its disposition natural, from the standpoint of the testator.
I am convinced that the’ evidence in no respect preponderates against the findings of the trial court, and that the judgment should be affirmed.
I therefore dissent.
Parker, J., concurs in the result reached by Toil-man, J.