256 P. 204 | Cal. | 1927
This is an appeal from a judgment of the superior court of Los Angeles County admitting to probate *164 the will of Grace Magerl, deceased, after a trial before the court, sitting without a jury, of a contest of said will by the appellant herein, who was a son of the decedent. The record upon this appeal is a very voluminous one, but the essential facts required for a determination of the appeal may be briefly stated as follows: The last will and testament of the decedent was executed by her on August 24, 1921, in Salt Lake City, of which city she was then a resident. By the terms of her will she devised and bequeathed to her son, Herman L. Martin, the appellant herein, a dwelling-house in Salt Lake City and a one-half interest in certain personal property. To her husband, Joseph E. Magerl, she bequeathed all of her real estate situate in San Diego, California. All of the rest and residue of her estate she bequeathed to her sister, Berilla Ward, and the husband of the latter, E.E. Ward, equally, share and share alike. She appointed Berilla Ward executrix of her will and estate. Mrs. Magerl shortly thereafter left Salt Lake City for California, where she resided up to the time of her death, which occurred on April 21, 1924. On May 20, 1924, Berilla Ward offered the will for probate, whereupon Herman L. Martin, the decedent's son by a former marriage, filed his contest and opposition to the probate of said will, wherein and also in his amended opposition thereto later filed he set forth two grounds of contest, namely, undue influence alleged to have been exercised upon his mother by Berilla Ward and others; and unsoundness of mind. A trial was had upon such contest before the court sitting with a jury, at the conclusion of which a motion for an instructed verdict was granted by the judge as to the ground of undue influence, but was denied as to the ground of unsoundness of mind. The matter being then submitted to the jury upon the latter ground, it rendered its verdict in favor of the contestant upon the issue of the unsoundness of mind and in favor of the proponent upon the issue as to undue influence. The proponent moved for a new trial, which motion was granted by the court, whereupon the contestant sought and obtained leave to file a second amended ground of contest and opposition to the probate of the will, in which was included a new ground, namely, that the will was procured through the fraud of Berilla *165 Ward, her sister, Lydia Ward, and one S.P. Armstrong, the Salt Lake City attorney who drew the will. The proponent, Berilla Ward, answered, denying all the allegations of the second amended contest, and the cause being at issue was transferred to another department of said superior court for trial. Thereupon counsel for the contestant served and filed a notice of motion to set the cause for trial, and in accordance therewith, after several transfers to different departments of said court, the cause came on for trial before the department thereof presided over by Honorable Charles S. Burnell on June 16, 1925. When the case was called for trial on that day the proponent objected to a jury trial and demanded a trial by the court upon the ground and for the reason that no written demand for a jury trial had been made by the contestant as provided by section 1312 of the Code of Civil Procedure. The trial court thereupon made an order sustaining said objection and excusing the jury, and thereupon proceeded to a trial of the cause without a jury, and after a prolonged trial made its findings of fact and conclusions of law adverse to the contestant upon all grounds of contest and thereupon denied the contest and admitted the will to probate. A judgment to that effect was rendered and entered on August 1, 1925. The contestant in due course made a motion for a new trial upon all the statutory grounds, which motion having been heard and denied, the contestant prosecutes this appeal.
While the record on appeal is voluminous, embracing six bulky volumes of typewritten transcript, the appellant makes no contention that the evidence educed at the second trial was insufficient to justify the decision of the trial court. According to both the opening and closing briefs of his counsel, the only purpose for which such evidence is adverted to and extensively set forth in the appendix is in order to illustrate to this court the merits of his contention that he should have been accorded a trial of his contest before a jury. [1] The question, however, as to whether the trial court was in error in making its order refusing the contestant a jury trial must be determined by the state of the record touching that particular phase of the case rather than by the nature and extent of the evidence presented upon the hearing before the court after the making *166
and entry of its order refusing to submit the contest to a jury.[2] This cause being one triable in probate, wherein the contestant was not entitled as of right to a trial by jury, he could only procure that right by a compliance with the terms of the statute regulating hearings upon the contest of wills. Section
It necessarily follows that the contention of the appellant that the trial court was in error in refusing a jury trial is not subject to review upon this appeal.
[5] The appellant makes the further contention that the trial court erred in denying his motion for a new trial upon several of the grounds enumerated in said motion. His first insistence in this regard is that he is entitled to have reviewed the action of the trial court in refusing a trial by jury as an irregularity in the proceeding of the court by which he was prevented from having a fair trial. It is clear, however, that if our reasoning heretofore indulged in is correct, the action of the trial court in that regard was not such an irregularity as was so reviewable, and for the like reason such action upon the part of the trial court was not "an error of law occurring at the trial and excepted to by the party making the application." This disposes of those two grounds of the contestant's said motion.
[6] The contestant makes the further contention that under the specifications of "irregularity in the proceedings of the court" he is entitled to have reviewed the alleged misconduct of the judge of the court evinced during the trial and indicating that he was prejudiced against the contestant, and that the findings of the court were so influenced by such prejudice that the contestant's substantial rights were materially affected thereby. The difficulty with the appellant's asserted right to have such alleged prejudice on the part of the trial court reviewed upon this appeal consists in the fact that his motion for a new trial upon that ground was not supported by any affidavits, such as are required by section
The foregoing being the only points made by the contestant upon this appeal, the judgment and order are affirmed.
Curtis, J., Shenk, J., Seawell, J., Preston, J., Langdon, J., and Waste, C.J., concurred.