54 Cal. 471 | Cal. | 1880
This is an appeal from the judgment and order of the Probate Court of the City and County of San Francisco, refusing to set aside the will of the decedent after it had been admitted to probate. The case comes here upon the judgment roll, including a bill of exceptions. There was a section or paragraph in the petition of the contestant, which read as follows : “That deceased was not free from fraud at the time of the execution of said instrument. For that it was the will and desire of the deceased that his estate should be distributed, after his decease, differently than as named in said instrument, and that in executing said instrument he made and declared as a part thereof, certain verbal bequests or legacies in favor of petitioner and divers other persons, (and conferring benefits not conferred by said instrument) and charging the same on said Reid as executor ; but at said Reid’s request, omitted to note them on said instrument, because of the promises of said Reid to pay them, which promises were made without any intention of performing them on the part of said Reid.” This was demurred to on the
We confess our inability to discover the appositeness of all of these alleged grounds of demurrer. The demurrer was sustained by the Court on the ground “ that the matter ” contained in said paragraph “ did not constitute a reason for revoking the will.” There was no error in that ruling, as we will endeavor to show in another part of this opinion.
The bill of exceptions contains an amended petition of the contestant, which the proponent objected to, on the “ ground that it was immaterial, and because the allegations of one of the paragraphs were substantially the same as those contained in the paragraph of the petition to which the court had sustained a demurrer.” To this objection it is stated that “ the court reserved its decision: stating that in case the will was set aside and declared null and void, it would allow said amended petition ; but in case it was sustained, it would disallow said amended petition. The Court finally disallowed said amended petition, to which ruling the contestant duly excepted.”
It strikes us that this constituted an “ irregularity in the proceedings of the Court,” but we are unable to perceive that the appellant was thereby “ prevented from having a fair trial.” The practice of reserving a decision upon a question of this character until the evidence is in, is not, in our opinion, commendable. All questions relating to the sufficiency of the pleadings should be passed upon when presented, and before proceeding further in a trial. The orderly conduct of a trial requires this. But as we understand it, the Court treated this amended petition as properly filed and before it until all the testimony had been taken, and then rejected it because it was not sustained by the evidence. If this be so, the appellant had the full benefit of his amended petition. And that he did, the testimony taken on the trial and copied into the transcript abundantly proves. He was permitted to introduce without limitation, so far as we can discover, evidence in support of each and every allegation of his amended jDetition.
A witness testified to some remarks made by the proponent
The testator, and proponent, who is the principal devisee and legatee of the will, were partners for many years prior and up to the time of the decease of the former, and it is claimed on behalf of contestant that that per se raises a presumption of undue influence. We know of no case in which it has been so held. It is doubtless a circumstance to be considered with other facts and circumstances, when determining the question whether pr not undue influence was brought to bear upon the testator. We think the suspicion of undue influence having been exerted would be much stronger in a case where a testator should give all his property to a stranger, than in one where he gives it a.ll to one with whom he was intimately connected socially and in business for a great many years immediately preceding his death.
There was no error in sustaining an objection to the introduction of the will for the purpose of showing that it was not declared by the testator to be his last will. The will would not show whether he did or did not so declare.
The agreement, therefore,, whether made in good or bad faith, cannot affect the validity of a will previously made.
We arc satisfied that upon the facts before us the decision and judgment of the Probate Court ought not to be disturbed.
Judgment affirmed.
Morrison, C. J., Thornton, J., and Myrick, J,, concurred.