129 P. 997 | Cal. | 1913
This is an appeal from an order admitting a certain document to probate as the last will of deceased, and appointing the petitioner William Mollenkopf executor thereof without bond as specified therein.
The material facts on this appeal are substantially as follows: The petition for the probate of said alleged will came on for hearing on March 19, 1912, at ten o'clock A.M. At that time no written grounds of opposition had been filed. One of the attorneys of the contestant (Juliana R. de Long, mother of deceased) announced to the court that written *578
grounds of opposition to the probate had been mailed in Los Angeles to the clerk of said court the day before, and were then due in San Francisco, and that a copy thereof had been served on petitioner's attorney the day before. The court announced that "as some of the witnesses had come from Los Angeles, he would hear their testimony preliminarily and without prejudice to the rights of the contestant." Witnesses were then called and examined on behalf of the petitioner, and gave testimony that the will was duly executed, and that deceased was of sound mind and not acting under duress, fraud, etc. The court then stated that it would continue the further hearing of the matter to two o'clock P.M. of the same day, which was done. Prior to that time the written opposition to the probate was filed in the office of the clerk of said court, and the same showed, by affidavit attached thereto, that it had been served by copy on the attorney for the petitioner, by the leaving of such copy in his office with a person in charge thereof under the circumstances and in the manner specified in subdivision 1 of section
It is not disputed that if the written opposition was properly served on petitioner's attorney and was not filed too late to entitle it to be considered, it was a bar to the admission of the alleged will to probate, until disposed of in the manner provided by law. Such disposition involved an opportunity to those interested in the will to answer the opposition, and a trial of the issues thus made, by a jury if either party so requested. *579
It is not suggested by respondent that service of the written opposition, by copy, was not made on petitioner on March 18, 1912, in all respects as required by law, and we are satisfied that the affidavit attached to the written opposition sufficiently showed due service.
Our law nowhere in terms prescribes when the written opposition must be filed, in the case of a contest before probate, in order to entitle it to be considered. Notice of the time appointed for the probate having been provided, it is declared in section
It has been held that if the contest is properly instituted before the time to which the hearing on the petition is continued, it is in time and must be considered. This is practically held in Estate of Stewart,
The record on appeal, fairly construed, brings this case within the doctrine of these decisions. Much reliance is placed by respondent upon the fact that the court did receive testimony in support of the will at the morning session and before continuing the further hearing to two P.M., and he claims that the record shows that the hearing was then completed, no *581 further testimony having been given at the afternoon session. But the bill of exceptions shows that in response to the statement of counsel for the contestant as to the proposed contest, the learned judge of the trial court announced that "as some of the witnesses had come from Los Angeles he would hear their testimony preliminarily and without prejudice to the rights of the contestant," and that after doing this, he continued the further hearing of the matter to two o'clock P.M. This was practically, for all the purposes of a contest, a continuance of the whole hearing from the time originally set until two o'clock P.M. of the same day, and it was a continuance that the court had power to grant. Under the authorities already cited, the contest was therefore filed in time. The mere receiving of testimony at the morning session under the circumstances stated in no wise affects the question, even though thereby a prima facie case for the admission of the will to probate was shown.
We are by no means prepared to concede that a failure to file a contest before the commencement of the taking of testimony on a petitioner's application, would under any circumstances preclude the filing of the same subsequently, and before the matter was finally submitted to the court for decision. But we are not called upon to determine this question here, as we are satisfied that upon any fair construction of the record the contest must be held to have been instituted before the time to which the matter had been continued for hearing from the time originally fixed, the testimony actually received at the first session being expressly declared to be received preliminarily orin advance, merely for the convenience of the witnesses from Los Angeles, and "without prejudice to the rights of the contestant."
Although contestant was not barred by the order admitting the will to probate from instituting a new contest at any time within one year after the alleged will was admitted to probate, it cannot be held, and indeed is not claimed, that she is not substantially prejudiced by the disregard of her contest before probate. One result of such contest, if successful, would have been to prevent the petitioner for probate from acting as executor without bonds, and if appointed administrator of the estate of deceased, he would be required to give security for the faithful performance of his duties. As the owner of *582 half of the property of the decedent if the will was invalid, contestant was substantially interested in having proper security for the discharge of his duties by the person administering the estate. She would have no such security under the order appealed from during the pendency of any contest instituted by her after probate. We do not mean to suggest that this is the only reason for holding the order prejudicial to contestant's substantial rights.
The order appealed from is reversed.
Shaw, J., and Sloss, J., concurred.